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Full text of "North Carolina Register v.11 no. 13 (10/1/1996)"

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NORTH CAROLINA 



REGISTER 



VOLUME 11 



> ISSUE 13 • Pages 
October 1, 1996 









OCT 4 1996 

fi|§imW#ft= EVERETT 



IN THIS ISSUE 

Final Decision Letter 

Administrative Hearings, Office of 

Commerce 

Environment, Health, and Natural Resources 

Human Resources 

State Personnel 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1. 13 



I 



North Carolina Register 
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North Carolina Register binders come in a set of two. To order, please complete this form 
and return with payment to the address given below Binders are mailed immediately upon 
receipt of payment. 



I would like to order 



set(s) of the North Carohita Register 



binders at $20.00 per set. 



For binders mailed within NC, add $1 20 per set for sales tax. 
If tax exempt, enter tax exempt number 



Mailing; No. of sets of binders 



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For more information, call or write: 

North Carolina 

Office of Administrative Hearings 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919)733-2678 

FAX (919) 733-3462 



i 



NORTH CAROLINA 

ili 



IN THIS ISSUE 




Volume 1 1 , Issue 1 3 
Pages 1 038 - 1 1 OO 



I, IN ADDITION 

Voting Rights Letter 



. 1038 



II. RULE-MAKING PROCEEDINGS 

Environmental, Health, and Natural Resources 

Wildlife Resources and Water Safety 1039 



III. PROPOSED RULES 

Administrative Hearings, Office of 

Rules Division 1058 - 1060 

Commerce 

NC State Ports Authority 1040 - 1050 

Environment, Health, and Natural Resources 

Health Services 1055 - 1058 

Human Resources 

Vocational Rehabilitation Services 1051 - 1055 



October 1 , 1 996 



This issue contains documents officially 
filed through September 10, 1996. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Teresa Kilpatrick, Editorial Assistant 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



IV. TEMPORARY RULES 
Human Resources 

Medical Assistance 1061 - 1062 

State Personnel 
State Personnel Commission 1062 - 1066 

V. RULES REVIEW COMMISSION 1067 - 1074 

VI. CONTESTED CASE DECISIONS 

Index to AU Decisions 1075 - 1084 

Text of Selected Decisions 

96 ABC 0447 1085 - 1086 

95 OSP 0203 1087- 1091 

95 OSP 1084 1092-1094 

96 OSP 0955 1095 - 1099 

VII. CUMULATIVE INDEX 1-29 



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IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the 
Codifier of Rules for publication. 



U.S. Department of Justice 

Civil Rights Division 

DLP:JG:TGL:jdp:tlb Voting Section 

DJ 166-012-3 P.O. Box 66128 

96-2875 Washington, D.C. 20035-6128 



September 3, 1996 



Robert C. Cogswell, Jr., Esq. 

City Attorney 

P.O. Box 1513 

Fayetteville, North Carolina 28302-1513 

Dear Mr. Cogswell: 

This refers to the increase in the compensation for the mayor and councilmembers of the City of Fayetteville in 
Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 
U.S.C. 1973c. We received your submission on July 3, 1996. 

The Attorney General does not interpose any objection to the specified change. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the 
enforcement of the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 



Sincerely, 

Deval L. Patrick 

Assistant Attorney General 

Civil Rights Division 



By: 



for Elizabeth Johnson 
Acting Chief, Voting Section 



11:13 NORTH CAROLINA REGISTER October 1, 1996 1038 



RULE-MAKING PROCEEDINGS 



A Notice of Rule -making Proceedings is a statement ofsuhject matter of the agency 's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of 
a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register 
under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: 
G.S. J50B-21.2. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

'\Tbtice of Rule-making Proceedings is hereby given by the North Carolina Wildlife Commission in accordance with 
1 y/ G.S. 150B-21.2. Tfie agency sliall siibsequently publish in the Register the text of the nde(s) it proposes to adopt 
as a result of this notice of rule-making proceedings and any comments received on this notice. 



Citation to Existing Rules Affected by this Rule-Making: 

proposed in the course of the rule-making process. 



15A NCAC lOF .0317, .0339 Other rules may be 



Authority for the rule-making: G.S. 75A-3; 75A-I5 

Statement of the Subject Matter: 

15A NCAC lOF .0317 - Proposed no wake zone on Lake Tillery. 

ISA NCAC lOF .0339 - Proposed no wake zone on Lake James. 

Reason for Proposed Action: To regulate boat speed in congested area. 

Comment Procedures: Tlie record will be open for receipt of written comments from October 1, 1996 through 
December 2, 1996. Such written comments must be delivered or mailed to the North Carolina Wildlife Resources 
Commission, 512 N. Salisbury Street, Raleigh, NC 27604-1188. 



{ 



1039 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published 
a Notice of Rule-making Proceedings. The agency must accept convnents on the proposed rule for at least 30 days from 
the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required 
comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). 
Statutory reference: G.S. 1508-21. 2. 



TITLE 4 - DEPARTMENT OF COMMERCE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina State Ports Author- 
ity intends to repeal rules cited as 4 NCAC 13A .0101- 
.0102, .0105, .0202-.0204; 13B .0001 -.0005; 13C .0001; 
13D .0101; 13E .0101-.0103, .0201-.0202, .0301-.0302, 
.0401 -.0405, .0501 - .0502, .0601- .0603, .0701 - .0702, 
.0801, .0803, .0901 -.0902; 13F .0301 -.0302. Notice of 
Rule-making Proceedings was published in the Register on 
March 15, 1996. 

Proposed Effective Date: April 1, 1997 

Instructions on How to Demand a Public Hearing {must 
be requested in writing within 15 days of notice): Public 
Hearing may be requested in writing to Thomas J. Green, 
Jr., North Carolina State Ports Authority, P.O. Box 9002, 
Wilmington, NC 28402 on or before October 16, 1996. 

Reason for Proposed Action: Rules to be repealed relate 
to internal management of the agency or restate State law. 
Rules not required. 

Comment Procedures: Comments may be made in writing 
to Thomas J. Green, Jr. , N. C. State Ports Authority, P. O. 
Box 9002, Wilmington, N.C. on or before October 31, 1996. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government finds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 13 - STATE PORTS AUTHORITY 

SUBCHAPTER 13A - DEPARTMENTAL RULES 
AND GENERAL PROVISIONS 



.0102 FUNCTIONS 

Tho Stat e Ports Authority promot e s, d e v e lops, oonstruots, 
equips , maintains and operates tho harbors and seaports of 
North Carolina. 

Authority G.S. 143B-453. 

.0105 ADMINISTRATION OF THE 
AUTHORITY 

In order for th e Port o Authority to aooompliob th e 
purpose s set forth in Rule .0102 of this Section, the Port s 
Authority from time to time creates certain administrativ e 
and operating s e ctions as it dooms n e c e ssary to promot e and 
operat e its t e rminals at Mor e h e ad Cit)' and Wilmington. 

Authority G.S. 143B-454(7). 

SECTION .0200 - GENERAL PROVISIONS 



.0202 EXECUTION OF CONTRACTS 

All contracts and instruments of conveyance having boon 
duly approv e d shall bo signed by the Chairman of th e Board 
of tho State Ports Authority or the chairman may delegate 
the signing to the executive director. — Tho Secretary of tho 
Board of th e Stat e Ports Authority signs with th e ohairman 
all oontraots and inotrum e nto of conv e yanc e authoriz e d by 
the Ports Authority and ho affixes tho seal of tho Ports 
Authority' as authorized to such documents. — If the chairman 
has d e l e gat e d to the e x e cutiv e dir e ctor th e signing of 
contracts and instrum e nts of conv e yanc e . — th e assistant 
secretary V i iU sign with tho executive director such contracts 
and instruments of convoyance and he affixes the seal of the 
Ports Authority. — In th e abs e nc e of th e s e or e tar)', — tfee 
assistant oocretar>' will sign with th e chairman ouch contracts 
and instruments of conveyance and affix tho seal of tho 
Ports Authority as authorized. 



SECTION .0100 - ORGANIZATION OF 
STATE PORTS AUTHORITY 



Authority G.S. 143B-454. 

.0203 REAL PROPERTY AND CONSTRUCTION 
.0101 IDENTIFYING INFORMATION (a) Th e Ports Authority owns r e al prop e rty- in it s own 

The principal office of tho State Porta Authority is locat e d nam e and may with th e approval of the Gov e rnor and 



etf 



North Carolina Stat e Ports Authority 

2202 Bumotte Boulevard 

P.O. Box 9002 

Wilmington, North Carolina 2 8 '102 



Authority G.S. 1438-454(6). 



Council of State acquire or dispose of real proport)' as it 
deems proper to carr^' out its purposes. — It may acquire 
prop e rty by purchas e , negotiation, by th e e x e rcis e of th e 
right of e min e nt domain, such cond e mnation proooodings to 
bo maintained by and in the name of the Ports Authority, 
(b) Construction funded by capital improvement appropri 
ations of th e Stat e of North Carolina ohall b e subj e ct to 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1040 



PROPOSED RULES 



applicable state laws as administered by the Department of 
Adminictration. Offic e of State Prop e rty and CooGtruction. 
(o) Construotion projects, the required fundmg of which 
is no more than Fift) thousand dollars (550,000). may bo bid 
on an informal basis by the director of engineering. 
Requ e sts for bids on on informal basis shall bo by l e tt e r to 
parti e s likely to bo int e r e sted in construotion of th e proj e ct 
and the letter shall give adequate instructions as to bidding 
proceodings. date of bid opening, and sufficient information 
aad — specifications — necessaP i ' — te — enabl e — a — biddor — te — be 
properl) inform e d prior to submission of his bid. 

Authonn- G.S. 143-129; 143B-454; 143B-455: 143B-457. 

.0204 VTNDCSG SERVICES 

In an>' building or facility owned, leased, or otherwise 
controlled b\ this Ports Authorit)' in vshich there is located 
a ' .e nding facility operat e d b)' the ' . isually handicapp e d or 
one or mor e coin op e rat e d v e nding innchin e s operat e d und e r 
contract w ith the Department of Human Resources for the 
support of said ' . ending facilities, all pursuant to Article 3 
of Chapter 111 of the Gen e ral Statutes, no p e rson. Firm, or 
corporation shall be permitt e d to s e ll, or solicit for th e sal e 
of. anv t\pe of item which is generally available from such 
vending facility or machine located on the premises or to 
othep . ' . ise engage in direct comp e tition th e r e ' . vith. — During 
thos e occasional periods in which thoro is a substantial 
increase — in demand — for ' . ending services — on any — such 
premises, mobile vending facilities ' ■ ' . hieh are operating 
und e r contract with D e partment of Human Resourc e s as an 
e xt e nsion of th e coin operated ' . ending machine op e ration 
may be permitted to operate, all subject to the discretion and 
control of the director of tho facility. 

Authorin- G.S. 111-41: 1438-454(1}. 

SUBCHAPTER 13B - PURCHASING PROCEDLHES 

.0001 LAWS AND RUXES G0\ ERMNG 

Since the Port Authority' s purchasing procedure s are 
subject to the provisions of Article 3 of Chapter 1 4 3 of the 
G e n e ral — Statut es r e lating to th e purchas e of suppli e s, 
mat e rial and equipm e nt by s tate gosemm e nt, — th e Ports 
Authority i s governed by the rule s and regulations of the 
divi s ion of purchase and contract. Department of Adminis 
tration. as set forth in th e Stat e Purchasing Manual. — A copy 
of thi s manual i s locat e d in th e offic e of th e D e partm e nt of 
Administration. Division of Purchase and Contract. — i44 
West Jones Street. Raleigh. N.C.. and at 2202 Burn e tt 
Boul e ' . ard. NN'ilmington. N.C.. in th e offic e of th e purcha s 
Lng offic e r of th e Stat e Ports Authority. — A cop) is also on 
file in tho operations manager's office. 1 13 Arendell Street. 
Morehead City. N.C. 

Authorm G.S. 143B-453: 143B-454: 143B-465. 

.0002 PURCHASES EXCEEDING $5,000 



Purchases amounting to five thousand dollars (£5.000) or 
mor e , for it e ms not on contract certification ar e roquisi 
tion e d through th e Division of fhirchas e and Contract in 
accordance — W ' ith that division's prescribed — procedures. 
Purchase orders are issued directly to the supplier for items 
authorized by contract c e rtification. — Th e Ports Authority' 
may e ffect purchases through the division of purchase and 
contract — fer — amounts — lees — than — five — thousand — dollars 
(S5.000). at it s di s cretion. 

Authority- G.S. 143-52: 143B-453: 143B-454: 143B-465. 

.0003 PUTiCHASES NOT EXCEEDING $5,000: 
CERTIFICATION CONTRACTS 

Proc e dur e s for e ff e cting purcha ses , for it e rrus W ' hich ar e 
available on contract certification, v . hioh are in amounts loss 
than five thousand dollars (£5.000) aro as follows: 

(4^ A purchase order w ill b e issu e d by th e purchasing 

officer v . hen availabl e it e ms or their functional 
equivalent may bo obtained in accordance v . ith on 
established contract certification. 

f3-) TTi e purcha s e ord e r s of th e Ports Authority ar e 

s e riall) number e d and cl e arly indicate that tho 
North Carolina State Ports Authority is the issuer 
of the purchase order. — It gives the date and tho 
compl e t e addr e ss of th e s uppli e r to whom it is 
b e ing s e nt. — It requests d e liv e r)' to th e North 
Carolina State Ports Authority at whichever port 
is appropriate. .Morehead Citv . or Wilmington, 
and to th e p e rson who is to r e c e iv e the goods or 
s e r . ic e s ord e red at th e appropriate port. — Instruc 
tions v . ill state tho address to which the invoice 
will bo directed — Tho purchase order provides 
spac e for th e quantity of th e it e ms ord e r e d, th e 
d e ocnption. the unit price and th e total price. — A 
spaco is provid e d to show reference to the con 

tract certification number, if applicable. The 

purchasing offic e r signs th e purchase ord e r or it 
ma) b e signed b> a d e signat e d p e rson in th e 
Morehead City office. 

Authority G.S. 143B-453: 143B-454: 143B-465. 

.0004 PURCHASES NOT EXCEEDING $5,000: 
INFORMAL QUOTATIONS 

If a contract c e rtification is not in e ff e ct for a particular 
it e m, prior to the issuanc e of a purchase ord e r, informal 
quotations for purchases v . hich aro loss than five thousand 
dollars (£5.000) are obtained, whene'er possible. — Tliis may 
b e don e in se v e ral ' . ' . ays: 

fH A ' . ' . ritt e n r e qu e st for quotations may be made 

using a quotation form. — The request for quotation 
will clearly indicate that the agency requesting tho 
quotation is the North Carolina Stat e Ports Au 
thoritv'. — It will giv e the numb e r of th e r e qu e st for 
quotation and the date i s sued, clearly indicating 
that it i s not an order. — The quotation form has 



1041 



\ORTH CAROLINA REGISTER 



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11:13 



PROPOSED RULES 



room to indicato tho Port Authority's dolivor>' 
roquiromont. quantity and d e ocription of it e m s . 
Proopootive vondoro have spaoo to ohow th e ir 
dolivcr)' date, tcrmo and prioo. 

(3) If it oppoars in tho judgomont of tho purchaaing 

offioor that th e roquoct for quotation oan better b e 
handl e d by oorroopond e noo, a l e ttor will bo writ 
ton to proopoctivo auppliors roquosting quotations. 
Tho rosponooa from tho suppliors bocomo a mattor 
of rooord. 

(g) Whon timo do e s not permit th e us e of tho infor 

meA — quotation — form — ef — the — corroapondonce 
method, quotoa may be roccivcd by the purcha s 
ing offic e r malting telephon e oallo to s e v e ral 
supplioro in order to s e ouro tho d e sir e d it e m or 
items at tho boat possiblo prico. Tho results of tho 
tolophono calls arc tabulated by tho purchasing 
offic e r and ar e retained as a matt e r of r e cord. 

^4) After quotations are roooiv e d, th e y ar e tabulat e d 

to dotormino tho best available prico and if th e 
quotationfl aro consistent with tho roquiromonts of 
th e Porta Authority and meet th e r e quir e m e nt s of 
tho D e partm e nt of Administration, Division of 
Purchase and Contract, a purchase order is is 

Authority G.S. 143B-453; 143B-454; 143B-465. 

.0005 PURCHASES NOT EXCEEDING $5,000: 
MONTHLY ACCOUNT ORDERS 

In tho diocrotion of tho Porto Authority purchasing offic e r 
monthly account purchase orders may bo issued to various 
suppliors for specified items. — Tho supor > 'i3or of the parts 
department of th e appropriate port torminal authoriz e d to 
mak e t e lephon e calls to th e various suppli e rs to s e cur e th e 
desired items for inventory at tho most advantageous price 
consistent with prompt delivery in accordance with tho 
monthly account purchas e ord e r. Deliver)' tick e ts indicating 
receipt of goodo ao ord e r e d und e r this m e thod ar e sign e d by 
tho supor^'isor of tho appropriate parts department or his 
dosignoo. — Invoices for goods or services rondorod aro 
mail e d monthly to th e comptroller. 

Authority G.S 143B-453; 143B-454; 143B-465. 

SUBCHAPTER 13C - SOUTHPORT BOAT 
HARBOR 

.0001 LEASE OF SOUTHPORT BOAT 
HARBOR 

(e^ — Th e Southport Boat Harbor is own e d by the Ports 

Authority. It — is — located — afe — 6-1-3 — We s t — West — Strcot, 

Southport. North Carolina 28 4 61. 

(b) Th e harbor is l e as e d to a private op e rator. — A copy 
of this l e as e is on fil e with the Ex e cutiv e Dir e ctor of th e 
Porta Authority at its Wilmington office and also is on file 
with the State Property Officer at Administration Building, 



116 West Jones Stroot, Raleigh, North Carolina 27602 . 
Authority G.S. 143B-454(3); 143B-455. 

SUBCHAPTER 13D - PORT CHARGES TARIFF 



SECTION .0100 - GENERAL PROVISIONS 



.0101 



PUBLICATION OF PORT CHARGES 
TARIFF 

The port charges tariff of tho Porto Authority' sots forth the 
charges for services rendered at its terminalo and tho rules 
and regulations to bo foUowod by users of tho torminals : — fe 
aooordanco with Gen e ral Order No. — 15 of th e F e d e ral 
Maritim e Comminoion, th e tariff is fil e d with tho Federal 
Maritime Commission as a public document. — A public copy 
of tho tariff is on file at tho following address: — Federal 
Maritim e Commission, Bureau of Compliance, — 1 100 L 
Str ee t, NW, Washington, D.C. 20573. — A copy is also on 
file at tho North Carolina Stato Ports Authority, North 
Carolina Maritime Building Wilmington, 2202 Burnett 
Boul e vard, Wilmington, North Carolina 2 8 101. — Th e tariff 
is adopted by r e fer e nc e pursuant to G.S. 150B 11(0) and 
s hall include any later amendments and editions thereof. 

Authority G.S. 143B-453; 143B-454; 150B-14. 

SUBCHAPTER 13E - SECURITY AND SAFETY 

SECTION .0100 - TITLE AND ADOPTION: 
REGULATIONS 

.0101 TITLE 

Thi s Subchapter r e late s to r e gulations gov e rning traffic, 
parking and th e r e gistration of motor v e hicl e s and oth e r 
ordinances relating to tho safety and welfare of persons 
using the profwrty of the North Carolina State Ports Author 
ity at its Morehead City and Wilmington T e rmin alsr 

Authority G.S. 143B-461. 

.0102 ADOPTION 

B e it resolved that pursuant to the authority v e st e d in it by 
G.S. 1 4 3B 4 61, tho Board of tho North Carolina Stato Port s 
Authority adopts and records in its procoodings tho follow 
ing r e gulations of this Subchapt e r governing traffic, parking, 
and th e r e gi s tration of motor v e hicl e s and oth e r ordinanc e s 
relating to tho safety and welfare of persons using tho 
property' of tho North Carolina State Ports Authority at its 
Moreh e ad City and Wilmington T e rminals — From th e dat e 
of filing a copy of th e s e r e gulation s and ordinance s in tho 
offices of the Secretary of State and Attorney General, and 
providing the appropriate signs, thoy shall apply to and bo 
in e ff e ct on prop e rty own e d or l e a se d by th e Ports Authority 
at its Mor e h e ad City and Wilmington T e rminals. 

Authority G.S. I43B-461. 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1042 



PROPOSED RULES 



.0103 ORDINATION 

Tho provioiong of thio Subohaptor aro in aooordano e with 
G.S. H3B 461. and oatoblioh an ordinanco rogulating traffic 
upon tho strocto of tho tcrminala of tho North Carolina Stato 
Porto Authority at Morohoad City and Wilmington and se t 
forth oth e r ordinancoo relating to tho oafoty and welfare of 
poraona using tho property of tho Ports Authority, and 
repeal all othor ordinancoo and ooctions of ordinanoos in 
conflict herewith. 

Authority G.S. 143B-461. 

SECTION .0200 - DEFINmONS 

.0201 STATUTORY DEFINmONS 

The dofinitiono of all tormo used in thcoo ordinanoos ahall 
bo thoGO provid e d in G.S. 20 -1.01 and oth e r applicabl e 
s o otiono of the G e neral Statuteo of North Carolina insofar as 
they arc provided. 

Authority G.S. 143B-461. 

.0202 DEFINmONS: AUTHORITY 
ORDINANCES 

Other terms used shall be oonotrued as followo. unl e ss 
anoth e r meaning io cloarly apparent from th e language or 
context: 

f4-) Authorized Emergency Vehicle — Vehicles of fire 

d e partm e nts, police vehiolos. and such ambulano e o 
and omergenoy — vehicl e s as ar e designat e d or 
authorized by tho Executive Director of the North 
Carolina State Ports Authority; 

(3^ Crosswalk: 

-fa^ that part of a roadway at an int e ro e otion 

included — within tho connections — of tho 
lateral linos of the sidov i 'alks on oppooito 
sid e s of th e highway m e asur e d from th e 
curbs, or in the abs e nc e of curbs from th e 
edge s of tho traversable roadway; 

-(fe) any portion of a roadv^ay at an intersection 

or olsowh e r e distinctly indicated for ped e s 
trian crossing by linos or oth e r markings on 
the surface; 

^ Freight Lx)ading Zone. — A space adjacent to a 

transit shod or a war e house, rail tracks, op e n 
storag e areas, as d e signat e d from tim e to tim e by 
the executive director; 

f4) Official Traffic Control Devic e s. All signs, 

signals, marking s and d e vic e s not inconsi s t e nt 
with thio ordinanc e placed or orooted by th e Ports 
Authority for tho purpose of rogulating, warning 
or guiding traffic; 

(5^ Park or Parking. — Th e standing of a vehicle, 

wh e th e r occupi e d or not. oth e nvise than t e mpo 
rarily for the purpose of and while actually en 
gaged in loading or unloading merchandise or 



passengers; 

{%>) Pass e ng e r Loading Zon e . — A plac e adjacent to a 

transit sh e d, warehous e , hardotand, or designated 
parking area for the exclusive uso of vohicles 
during the loading or unloading of passengers; 
P e d e strian. — j\ny p e rson afoot; 






(9>- 



-fW)- 



-(-1-H- 



im- 



im- 



-H4)- 



-et^ 



a^ 



-fw>- 



-f+«)- 



Polic e Offic e r. Ev e ry offic e r of th e Port Author 

ity's Terminal Police Departments as authorized 

by G.S. 1 4 3B 4 61, or any officer authorized to 

direct or r e gulat e traffic or to mak e arr e sts for 

violation s of traffic or oth e r r e gulations publi s h e d 

heroin; 

Railroad. — A carrier of persons or property upon 

cars, other than str ee tcars, op e rat e d upon station 

ary rails; 

Railroad Train. A s team engine, electric or othor 

motor, with or without oars coupled thereto, 

op e rat e d upon rails, e xc e pt street cars; 

Sid e walk. — That portion of a str ee t b e tw ee n th e 

curb lines, or tho lateral lines of a roadway, and 

the adjacent property lines, intended for uso of 

p e d es trian s ; 

Stand or Standing. — Tli e halting of a vehicle. 



whether occupied or not, otherwise than for tho 
purp>oso of and while actually engaged in rocoiv 
ing or di s charging pa sse ng e r s ; 
Stop. — Wh e n r e quir e d, m e ans compl e t e c e ssation 

of movement. When prohibited. — means any 

stopping of a vohicle e xcept when nocessar)' to 
avoid conflict with oth e r traffic or in complianc e 
with th e dir e ction of on officer or traffic control 
s ign or s ignal; 

TTi rough Street. — Every street or portion thereof 
on which v e hicular traffic io giv e n preferential 
right of way, and at th e e ntranc e s to which v e hio 
ular traffic from intersecting streets is required by 
law to yield right of way to vehicles on such 
through str ee t in ob e di e nc e to e ith e r a stop sign or 
a yi e ld s ign, wh e n s uch signs ar e e r e ct e d as 
provided in this ordinance; 

Traffic. — Pede s trian s , ridden or horded animals, 
vehicles, and oth e r conveyances e ith e r singly or 
tog e th e r whil e u s ing any str ee t for purpos e s of 
travel ; 
Traffic Control Signal. i'Vny device, whether 



manually, e l e ctrically or m e chanically op e rat e d, 
by which traffic is alt e rnat e ly direct e d to stop and 
permitted to proceed; 

Traffic District. All strccto and jxjrtions of streets 
within — th e ar e a — s hown on — the — map s — of th e 
Moreh e ad City and Wilmington T e rminals, copi e s 
of which map s are incorporated herein and made 
a part of the s e ordinance s ; 

Traffic — Division. Th e traffic division of th e 

polic e — departm e nts — ef — the — Wilmington — e* 
Morehead City T e rminal s of th o Ports Authority, 
or in tho ovont a traffic division is not e s tablished. 



1043 



NORTH CAROLINA REGISTER 



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11:13 



PROPOSED RULES 



thon said torm whcnovor used horoin shall bo 
doomed to r e fer to th e polio e d o partmonts of th e 
Wilmington or Morohoad Cit)' Torminalo -e^-tha 
Ports Authority; 

-fi^) Vohiclo. Evor>' dovico in, upon or by which any 

poroon or property ia or may b e transport e d or 
drowna upon a highway, oxoopting d e vio e e mov e d 
by human posvor or used exclusively upon station 
ary rails or tracks. — In addition, the term vehic le 
for the purpose of thio ordinance shall b e d ee m e d 
to include all motor vohiol e s such oo industrial 
forklifto and tractors and trailers boing towod by 
such tractors. 

Authority G.S. 143B-461. 

SECTION .0300 - TRAFFIC ADMINISTRATION 

.0301 DUTIES OF POLICE DEPARTMENTS 

{ft) — The police departments of the Wilmington and 
Morohoad City Terminals of tho North Carolina State Ports 
Authority' shall b e directly rooponsible for the administration 
of traffic. 

(b) — It shall bo tho duty of tho police departments to 
onforco tho traffic regulations of tho tw » 'o torminals, to malco 
arrostfl for traffic violations, to investigat e aooid e nts and to 
ooop e rato with tho t e rminal traffic e ngin ee r and oth e r 
administrative officials of tho Ports Authority in tho admin 
istration of tho traffic laws and in developing ways and 
m e ans to improv e traffic oonditiono, and to oarr)' out thos e 
duties specially imposed upon th e d e partments by this 
ordinance. 

(c) Record Keeping; General 

(i) The poUoe departments shall k ee p a record of all 

violations of traffic ordinanc e s of the two t e rmi 
nals together with a rocord of tho final disposition 
of all such alleged offenses. — Such rocord shall be 
so maintain e d as to show all typ e s of violations 
and th e total of e ach. — Said r e cord shall acoumu 
late during at least a five year period and from 
that time on tho record shall bo maintained com 
pl e t e for at l e ast the most r e o e nt fiv e y e ar p e riod. 

(3^ All forms for records of violations and notic e s of 

violations shall be serially numbered. — For oach 
month and year a written rocord shall bo kept 
available to the public showing th e disposal of all 
such formo. 

(3) All such records and reports shall bo public 

records. 
(d) — It shall be th e duty of th e polic e d e partm e nts to 
inv e stigat e traffic accid e nts, to arr e st and to assist in th e 
prosecution of those persons charged with violations of law 
causing or contributing to such accidents. 

^ — Whenev e r the accid e nts at any particular location 
b e com e num e rous, the polioe dopartmonts shall coop e rat e 
with the terminal traffic engineer in conducting studios of 
such accidents and determining remedial measures. 



ff) — Tho police dopartmonts shall file traffic accident 
r e ports in acoordxmco with th e provisions of G.S. 20 166.1. 
Accid e nt r e ports or cards r e f e rring to them shall b e filed 
alphabetically by location. — Such reports shall be available 
for the use and information of tho terminal traffic onginoor. 
(g) Rocord Keeping; Accid e nts, Warnings, i\rrooto, and 
Convictions 

(4^ Tlio police departments shall maintain a suitable 

rocord of all traffic accidents, warnings, arrests, 
convictions, — and complaints reported for e ach 
driv e r, which shall b e fil e d alphabetically under 
tho name of the driver concerned. 

(3) The police departments shall study the coses of all 

th e drivers charg e d with frequ e nt or serious 
violations of th e traffic laws or involved in fre 
quont traffic accidents or any serious accident, 
and shall attempt to discover the reasons therefor, 
and may r e commend to th e executive director 
susp e nsion of th e privil e g e of operating a v e hicl e 
on tho torminals. — Tho executive director may 
suspend such privilege for any poriod of time ho 
consid e rs appropriato. 
(3) Such r e cords shall accumulate during at least a 
fivo year poriod and from that time on such 
records shall bo maintainod comploto for at least 
th e most r e c e nt fivo year p e riod, 
(h) i\nnual Tmffio R e port. The polio e d e partments shall 
annually prepare a traffic report which shall bo filed with 
tho executive director and tho torminol traffic onginoor. 
Suoh r e port shall contain information on traffic matters on 
th e t e rminal as follows; 

{^ tho number of traffic accidents, the number of 

persons killed, the number of jx a rsons injured, and 
oth e r pertinent traffic accident data; 

(3) th e numb e r of traffic accid e nts inv e stigat e d and 

other portinont data on tho safety activities of tho 
police; and 

(3) th e plans and recomm e ndations of tho department 

for futur e traffic saf e ty activiti e s. 

Authority G.S. 143B-461. 

.0302 DUTIES OF PORT MANAGERS 

It shall bo the general duty of the Port Manager s to 
determine tho installation and proper timing and maintenance 
of tmffio control deviooo, to initiat e e ngin ee ring analyses of 
traffic accid e nts and to d e vis e remedial measur e s, to initiat e 
engineoring investigation of traffic conditions, to plan the 
operation of traffic on tho streets and roadways of tho two 
t e rminals ^ — aad — to coop e rat e — with oth e r administrativ e 
officials of th e North Carolina Stat e Ports Authority in th e 
development of ways and moans to improve traffic condi 
tions and to carr)' out tho additional powers and duties 
impos e d by this ordinanc e . 

Authority G.S. 143B-461. 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1044 



PROPOSED RULES 



SECTION .0400 - ENFORCEMENT OF AND 
OBEDIENCE TO TRAFFIC REGULATIONS 

.0401 ENFORCEMENT BY POLICE 
OFFICERS 

In accordance ' ■ ' ■ ith tho pro' i isiono of G.S. M3B '161. it 
Ghall b e thj dut> of th e polic e d e partm a nto or ouch offic e rs 
as aro a3signcd by tho chiefs of police to enforce all street 
traffic laws of the W\o terminals and all of the state vehicle 
laws gpplioabl g to str e et traffic in th e tsvo t e rminals. 

Authority- G.S. 143B-461. 

.0402 DIRECTION OF TRAFFIC BY 
POLICE OFFICERS 

Officers of the police departments or such officers as arc 
assigned b^ the chiefs of police are hereby authorized to 
direct all traffic b) voic e , hand or signal in conformanc e 
with traffic laws, provid e d that, in tho event of a fir e or 
other emergency or to expedit e — traffic or to safeguard 
pedestrians, officers of the police department may direct 
traffic — as — conditions — fsay — r e quir e — notwithstanding — the 
provisions of th e traffic laws. 

Authorin- G.S. 143B-461. 

.0403 OPERATION OF EMERGENCY 
VEHICLE 

(a) The driver of an authorized emergency vehicle, when 
r e sponding to an emergency call or ' .'. h e n in the pursuit of 
an actual or susp e cted violator of th e law or wh e n r e spond 
ing to but not upon returning from a fire alarm. — may 
exercise the privileges set forth in this Rule, but subject to 
th e conditions h e r e in stat e d. 

("b) Th e driv e r of on authoriz e d emergency v e hicl e may: 

H-) park or stand, irrespective of the provisions of 

this ordinance: 

(3^ proceed past a red or stop signal or stop sign, but 

only aft e r slowing down as may b e n e c e ssar)' for 
s afe operation: 

(3) oxoecd the maximum sp>ocd limits so long as he 

does not endang e r lif e or prop e rty: 

(4^ disr e gard — regulation s — go' . ' e ming — dir e ction — &f 

movement or turning in specified directions. 
fe^ — The exemptions herein granted to on authorized 
e m e rgenc) v e hicl e shall apply only v . h e n th e driv e r of any 
said vehicle v . hil e in motion s ound s audibl e s ignal by b e ll. 
siren, or exhaust whistle as may be reasonably necessary. 
and when the vehicle is equipped with at least one light e d 
lamp di s playing a r e d or blu e light visibl e und e r norma l 
atmospheric conditions from a distxmc e as d e fined in tho 
state statutes to the front of s uch vehicle: except that an 
authorized emergency vehicle operated as a police vehicle 
n ee d not b e e quipped V i ith or display a r e d or blue light 
visibl e from in front of th e v e hic le . 

(d) The foregoing provision s s hall not roliovo the driver 
of an authorized emergency vehicle from the duty to drive 



with due regard for the safety of all persons, nor shall such 
provisions protect th e driv e r from th e consequenc e s of bio 
reckl e ss disr e gard for th e saf e ty of oth e rs. 

Authority G.S. 143B-461. 

.0404 RIGHT OF WAY: EMERGENCY 
NTHICLE 

W^ — Upon tho immediate approach of an authorized 
em e rg e ncy vehicl e maldng us e of audible and visual oignalo 
mooting th e r e quir e m e nts of th e laws of this stat e , or of a 
police vehicle properly and lasvfully making use of on 
audible signal only, the driver of every other vehicle shall 
yi e ld th e right of s i. ay and shall immediat e ly drive to a 
position — parall e l — te^ — and — as clos e — as — possibl e — te^ — tbe 
right hand edge or curb of the roadway clear of any inter 
section and shall stop and remain in such position until the 
authoriz e d e mergency v e hicl e has pass e d, except when 
oth e p . ' . is e dir e ct e d by a polic e officer. 

(b) This rule shall not operate to relieve the driver of an 
authorized emergency vehicle from the duty to drive with 
du e regard for th e safety of all p e rsons using th e highway. 

Authority- G.S. 1438-461. 

.0405 COLLISIONS: REPORTS ANT) 
ENVTSTIGATIONS 

Reports and investigations are required in the event of 
collision. Report s and notices of accidents by tho driver of 
a v e hicl e involv e d in a collision shall be fil e d ao proscribed 
b) G.S. 20 166.1. — Copi es of such r e ports may b e obtained 
from the Commissioner of Motor Vehicles. Raleigh. North 
Carolina. 

Authority G.S. 143B-461. 

SECTION .0500 - TRAFTIC CONTROL 
DEVICES 

.0501 PLACEMENT AND MAINTENANCE 

Tlie port managers shall place and maintain traffic control 
signs, signals, and device s ' .'. hen and as r e quir e d under the 
traffic ordinance s of th e tw o t e rminals to mok e e ffective tho 
provision s of s aid ordinances, and may place and maintain 
such additional traffic control devices as they may doom 
n e c e ssaiy to r e gulat e traffic under th e traffic ordinanc e s of 
th e t' . ' . o t e rminals or under stat e law, or to guido or worn 
traffic. 

Authorit\' G.S. 143B-461. 

.0502 STANDARDS ANT) SPECIFICATIONS 

■M\ — traffic control — s ign s . — signals. — aftd — devices — shall 
conform — te — the — sp e cifications — approv e d — by — the — North 
Carolina Stat e Highway Commission or r e solution adopted 
by the governing body of tho Ports Authority. — All s igns and 
signals required hereunder for a particular purpose, not 



1045 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



PROPOSED RULES 



dofinod by tho North Carolina State Highway Commioaion 
Bpooifioationo, ohall do far go praotioabl e bo uniform -as-te 

typo and looation throughout tho torminalo. All traf 

fie control dovicos so oroctod and not inconsistont with tho 
provioions of otato lasv or this ordinonco shall bo official 
traffic control dovio e o. 

Authority G.S. 143B-46L 

SECTION .0600 - OPERATION OF MOTOR 
VEHICLES 

.0601 SPEED LIMTTS 

Tho Dtato traffic lav ^ 'o regulating th e opood of vohioloo ohall 
bo applioablo upon all Dtroots within th e two terminalo. 
oxcopt as this ordinanco, as authorized by atnto law, hereby 
doclaroa and dctcrmineo upon the basis of engineering and 
traffic investigation that c e rtain speod r e gulationo r e ducing 
state wide spe e d limito shall b e applicabl e upon op e oifi e d 
strooto or in certain areas, in which event it shall bo unlaw 
fill for any person to drive a vehicle at a speed in excess of 
any speed so d e clared in this ordinanco when signs ar e in a 
place giving notioo th e r e of. — Based upon a traffic and 
onginooring investigation, speed limits are established on 
streets, alloys, and driveways located on each of tho tv ^ 'o 
terminals and tho sp ee d limit, as indicat e d in Rules .0901(a) 
and .0903(a) of this Subchapter, is h e r e by Fixed for th e 
designated streets, alleys, and driveways, and such speed 
Umits shall bo enforceable when approprioto signs havo boon 
posted to indicate th e maximum speed. 

Authority G.S. 143B-461. 

.0602 VEfflCLES WTTH LUGS RESTRICTED 

No poroon shall operate any tractor, crawler tractor, or 
other vehicle with wheels, tho treads of which have lugs 
attached thereto, at any time upon any paved area of either 
terminal without th e e xpress permission of th e op e rations 
manag e r of tho terminal. 

Authority G.S. 143B-461. 

.0603 ERECTION OF TRAFFIC CONTROL 
SIGNS 

Tho port managers are hereby authorizod and shall b e 
r e sponsible for e r e cting s ign s called for by Rul e s .0901(a) 
to (g) and .0902(a) to (g) of this Subchapt e r. — Th e e r e ction, 
placement, and size and color of signs shall be in accor 
danco with the provision s of manual on "Uniform Traffic 
Control Devices for Str ee ts and Highways. " 



Tho port managers — may — designate areas — of tho two 
t e rminals wh e re smoking i s prohibit e d. — Upon such official 
d e signation, signs shall b o er e ct e d cl e arly d e fming ouch 
areas. — Areas wherein smoking is prohibited are listed in 
Rules .090101) and .0902(h) of this Subchapter. 

Authority G.S. 1433-461. 

.0702 FIRE ARMS PROHIBITED 

It shall b e unlawful for any p e rson to possess, or carr>', 
wh e th e r op e nly or conc e al e d, any gun, rifl e , pi s tol, dyna 
mito cartridge, bomb, grenade, mine, powerful explosive as 
defined in G.S. — 1 4 2 84 .1, bowie Icnife, dirk, dagger, 
slingshot, — l e ad e d — con e , — switch blade — knif e , — blackjack, 
m e tallic knuckl e s or any oth e r w e apon of lik e kind on e ith e r 
tho Morehoad City or Wilmington Terminal s of the Ports 
Authority'. For the purpose of this Section a self opening or 
sv . 'itch blad e knif e is d e fin e d as a knife containing a blad e 
or blad e s which op e n automatically by the release of a 
spring or a similar contrivance. — and tho above phrase 
"weapon of like kind" include s razors and razor blades 
(except sol e ly for p e rsonal shaving) and any sharp point e d 
or edged instrum e nt e xc e pt unaltered nail files and clips and 
tools used solely for the performance of one's dut)' or 
occupation on the terminal s . Thi s Section shall not apply to 
tho following p e rsons: — Offic e rs and e nlisted personnel of 
tho arm e d forc e s of th e Unit e d Stat e s wh e n in discharge of 
their official duties as such and acting under orders roquir 
ing them to carr)' arms or weapons, civil officers of tho 
Unit e d Stat e s whil e in th e discharg e of their official duties, 
offic e rs and soldi e rs of th e militia and th e national guard 
when called into actual service, officers of tho state, or of 
any county, city, or town, including duly sworn special 
polic e men in th e e mploym e nt of th e Ports Authority' at th e 
two t e rminals, charg e d with th e e x e cution of th e laws of th e 
state, when acting in the discharge of their official duties. 

Authority G.S. 1438-461. 

SECTION .0800 - PENALTIES AND 
PROCEDURE 

.0801 PENALTIES UPON CONVICTION 

In accordxmco with G.S. 1 4 3B 4 61, any person convicted 
of a violation of any provision of this ordinanco shall be 
punish e d by a fin e of not mor e than fifty dollar s ($50.00) or 
by — imprisonm e nt — not to exceed — 30 days. — Any p e rson 
convicted of a violation of any provision of Chapter 20 of 
tho General Statute s appl i cable to tho two terminals shall be 
punish e d as therein prescribed. 



Authority G.S. 1438-461. 



Authority G.S. 1438-461. 



SECTION .0700 - CONTROL OF FIRE 
ARMS AND SMOKING 

.0701 SMOKING RESTRICTIONS 



.0803 REGISTRATION OF VEHICLES 
AND GATE PROCEDURE 

Every vehicle entering the premi s es of tho North Carolina 
State Ports Authority must be registered by tho Ports 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1046 



PROPOSED RULES 



Authority' Polioo Dopartmont. — Ports Authority' otnployocs. 
longshoring e mplo)ooo and tanantp" employees will r e c e iv s 
and display rogiptration stiokorH sv ith the proper IdentiFica 
tion, to bo mounted on the left side of the front bumper of 
their vehicle. j\ll other vehioles entering the premiseo. ' . ' ■ ith 
the exception of emergency ' . 'ehicles. will s top at th e 
entranc e guflrdhous e . — Cargo carriers will b e r e gist e r e d and 
visitors ' ■ ' ■ ill be issued temporary gate passes. — Upon lea' . Lng 
the terminals, ' . ehioles ' ■ ' ■ ill again stop, for processing out in 
the cas e of cargo carri e rs and to return th e t e mporary gat e 
passes in the case of visitors. — Stopping areas will b e cl e arly 
marked at each port entrance and exist. 

Authority G.S. 143B-461. 

SECTION .0900 - SCHEDULES 

.0901 WILMINGTON ORDINANCE 
SCHEDLXES 

(a^ — The foUo' i^ ing schedule lists maximum speed limits 
for the U'ilmington Terminal: 

All Str ee ts 15 MPH 

Inside all Transit and Storage Buildings — 10 MPH 

All Open Berth Areas 15 MPH 

(fe) — The following schedule lists the locations of stop 
signs in th e Wilmington Terminal: 

Myers Boul e vard at North Gat e Hous e . 

Northeast comer of Warehouse Road and First Street. 

Northwest comer of Warehouse Road and Fourth Street. 

Southeast com e r of Maritim e Boulevard and Transit 

Road. 

Northwest comer of Maritime Boulevard and Fifth Street. 

Southeast comer of Maritime Boulevard and Commerce 

Str ee t. 

Maritime Boul e vard at Gat e Hous e . 

Northeast comer of Industrial Road and Sixth Street. 

South' i^ 'ost comer of Commerce Street and Sixth Street. 

South^' ^e st com e r of Industrial Road and Sev e nth Str ee t. 

Southeast comer of War e hous e Road and So' ^ enth Str ee t. 

Northeast comer of Warehouse Road and Eighth Street. 

South't' ^ est comer of Indu s trial Road and Eighth Street. 

North e ast com e r of Indu s trial Road and Cr e s e nt Str ee t. 

North e ast com e r of Warehouse Road and Ninth Str ee t. 

Southwe s t comer of Industrial Road and Ninth Street. 

Northeast comer of Industrial Road and Tenth Street. 

Northw e st com e r of Cr e s e nt Str ee t and T e nth Str ee t. 

Southw e st com e r of Comm e rc e Str ee t and T e nth Str ee t. 

Northeast comer of Warehouse Road and Eleventh Street. 

Southwest comer of Industrial Road and Eleventh Street. 

Northeast comer of Sixth Street and Industrial Road. 

Southeast comer of Eleventh Street and Industrial Road. 

Northeast — comer — of Industnal — Road — and — Commerce 

Street. 

North e ast com e r of Industrial Road and Maritime Blvd. 

Southwest com e r of Industrial Road and Maritim e Blvd. 

Northeast comer of Fourth Street and Industrial Road. 

Southwest comer of Fourth Street and Indu s trial Road. 



North' . ' ! est comer of South Warohouac Road and Maritime 

Southeast com e r of South Warehous e Road and Fourth 
Street. 

Northwest comer of Warehouse Road and Third Street. 

South e ast com e r of Warehouse Road and TTiird Str e et. 

Northw e st com e r of Woodbin e Str ee t and Transit Road. 

Northeast comer of Indu s trial Road and Fifth Street. 

Southeast comer of Warehouse Road and Transit Road. 

fe^ — TTi e following s ch e dul e lists the locations of yi e ld 
signs in th e Wilmington T e rminal: 

Southeast comer of Tran s it Road and RR Scale Road. 

Southwest comer of Tran s it Road and No. 1 Ramp. 

Southw es t com e r of Transit Road and No. 2 Ramp. 

Northeast com e r of Transit Road and S e cond Street. 

Southwest comer of Warehouse Road mid Second Street. 

Southwest comer of Tran s it Road and No. 3 Ramp. 

North e ast com e r of Transit Road and Third Str e et. 

Northw e st com e r of Industrial Road and Third Str ee t. 

Southv i e s t comer of Transit Road and No. 4 Ramp. 

Northeast comer of Transit Road and Fourth Street. 

Southv ie st com e r of Transit Road and No. 5 Romp. 

South' ^ v e st com e r of Transit Road and No. 6 Ramp. 

Northeast comer of Transit Road and Maritime Boulo 

vard. 

West Exit of Parking Lot at Maritim e Boulevard and 

Industrial Road. 

Southwest comer of Transit Road and No. 7 Ramp. 

Northeast comer of Transit Road and Seventh Street. 

Northwe s t com e r of Warehous e Road and Comm e rc e 

Str ee t. 

Northwest comer of Industnal — Road and Commorco 

Street. 

South e ast com e r of Fifth Street and Industrial Road. 

South e ast com e r of Industrial Road and Twelfth Street. 

(d) The following schedule lists the locations of railroad 
waming signs in the Wilmington Termina lT 

North sid e of Transit Road and North Gate Crossing- 
South sid e of Transit Road at North Gate Crossing- 
North side of Transit Road at intersection of Warehouse 

Road. 

South sid e of Transit Road at intersection of Warehouse 

Road. 

East side of Warehouse Road at intersection of Transit 

Readr 

Northw e st com e r of Third Street and Induotrial Road. 

South e ast com e r of Third Street and War e hous e Road. 

Northwest comer of Fourth Street and Industrial Road. 

South s ide of Fourth Street south of Cargo Shelter No. 1. 

W e st sid e of Transit Road at Lumb e r Ramp Crossing. 

East sid e of Transit Road at Lumb e r Ramp Crossing. 

North s ide of Maritime Boulevard at East Lumber Yard 

Crossing . 

South s id e of Maritim e Boul e vard at East Lumb e r Yard 

Crossing. 

South side of Maritime Boulevard at Main Gate Crossing. 

North side of Maritime Boulevard at Mam Gate Crossing. 



1047 



i\ORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



PROPOSED RULES 



South oido of Induatriol Road at Tv . 'olfth Stroot Croaaing . 
North oido of Induotrial Road at Twelfth Str ee t Croooing. 
(o) The following oohodulo lioto tho looationo of no thru 
traffic oigno in tho Wilmington Torm fflatr 

Southwoot comor of Warohouao Road and Firat Stroot. 
Northoaot oomor of Warohouo e Road and Fourth Str ee t. 
Warohouoo Road. 

Insido all tronoit and otorago buildings. 
(0 Tho follosving schodulo liota the locations of do not 
ontor oigno in th e Wilmington T e rmi ftak- 

Southwoot oomor of Tranoit Road and RR Scal e Road. 
(g) Tho foUo' i ' i 'ing schedule liota parlcing ordinancos in tho 
Wilmington Torminal: 

ft) Tho following oohodul e lists the looationo of no 

parking betw ee n oigno aroao: 

Southwest comor of Tronoit Road and Ramp No. 

1 to woot oido of Transit Road oppoaito loading 

door No. 6 of Tranoit Shod No. 1. 

Weot oido of Tranoit Road opposite loading door 

No. 4 of Tranoit Shod No. 2. to Northwest comor 

of Transit Road and Ramp No. 2. 

East sid e of Transit Road from North e nd of 

Warohouoo No. 3 to North oid e of P e roonnol 

Offico. 

East oido of Transit Road from South side of 

Personnel Offioo to Northeast oomor of Tranoit 

Road and Second Str ee t. 

Southeast comor of Transit Road and Second 

Stroot to East side of Transit Road oppooito 

loading door No. 1 in Warehous e No.l. 

Southeast comer of Transit Road and Third Street 

to Northeast comor of Transit Road and Fourth 

Stroot. 

South e aot com e r of Transit Road and Maritim e 

Boul e vard to Northeast com e r of Tranoit Road 

and Seventh Street. 

Southwest comer of Warehouse Road and Third 

Stroot to Northw e st comor of War e hous e Road 

and Fourth Stre e t. 

Southeast comer of Warehouse Road and Third 

Stroot to Northeast oomor of Warehouse Road and 

Fourth Street. 
(2) Th e following sch e dul e li s t s th e areas in which 

parlcing is prohibited and no parking signs will be 

oroctod: 

Northwest oom e r of El e venth Street. 

Northw e ot oomor of Ninth Str ee t. 

South comer of Transit Shod Number 4 . 

Northwest oomor of Maritime Boulevard. 

Op e n B e rths 1, 2, 3, 4, 5, 6, 7. 8 and 9. 

Tranoit Shedo T 2, T 3. T 4. T 5, T 6 and T 7. 

Storage Sheds W 3, W 4 and W 5. 
(b) — Tho following schedule lists tho areas in which 
smoking is prohibited in the Wilmington Terminal: 

(4) Smoking io prohibit e d in all ar e as w e st of th e 

railroad tracks along Transit Road and on tho 

South Open Berth. — Smoking will bo pcrmittod 



only within designated smoking areas. 

(3) Smoking is also prohibit e d in Storage Warohouooo 

1, 2, 3, and 4 and Cargo Shelter 1 and signs are 
posted in tho following locations: 
North and South ends of East and West sides of 
Tranoit Sh e d 1. 

North and South e nds of East and W e st sid e s of 
Transit Shed 2. 

North and South ends of East and West sides of 
Transit Sh e d 3. 

North and South e nds of East and W e ot sid e s of 
Transit Shed 4 . 

North and South ends of East and Woot sides of 
War e hous e I . 

North and South ends of East and Weot oidoo of 
Warehouse 2. 

North and South ends of East and West sides of 
War e hous e 3. 

North and South e nds of Eaot and W e ot sides of 
Warehouse 1. 

North and South onds of Cargo Sholtor 1. 
(i) Th e following sch e dul e listo streoto in th e Wilmington 
T e rminal whioh ar e on e way: 

T^'olfth Stroot is limited to one way traffic with such 
traffic moving from Industrial Road castbound to 
P e nnsylvania Av e nu e - 
T e nth Str ee t is limit e d to on e way traffic w e ot bound 
from Commerce Stroot to Industrial Road. 
Commerce Street is limited to one way traffic east 
bound from Industrial Road to T e nth Str ee t. 
Inbound traffic on th e couth gat e acc e ss road is 
I knitod to one way traffic west bound from tho south 
gate to Industrial Road. 

Th e south gat e e xit road is limit e d to on e way traffic 

e ast bound from Induotrial Road to th e Riv e r Road. 

fj) — The following schedule lists parking regulations in 

effect — en — the — North — Carolina — Maritime — Building 

Wilmington facility: 

fi) Th e thr ee parking ar e a s adjac e nt to th e North 

Carolina Maritime Building, 2202 Bumott Boule 
vard, Wilmington, N.C., and identified as parking 
areas on e . two and thr ee ar e restrict e d as follows: 

(A) Parking area numb e r on e imm e diat e ly north 

of the North Carolina Maritime Building 
shall bo by a ss ignment only. — Tho oxocutivo 
dir e ctor is hereby authoriz e d to mak e as 
s ignm e nts to individuals or compani e s for 
th e parking of automobiles in this aroa. 

(B) Parking area number two paralleling tho 

driv e way imm e diat e ly e ast of th e North 
Carolina Maritim e Building io r e strict e d to 
visitors to tho North Carolina Maritim e 
Building. 

(G) Parking area number throo to tho oouth of 

th e North Carolina Maritim e Building is 
rostrictod to employees of tho Ports Author 
ity or employees of tonants on the Port 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1048 



PROPOSED RULES 



Authorit>''a prominoo or viaitors and guosta 
of th e Porto Authority or its t e nants. 

^ Vohioleo parked in violation of tho for e going 

regulations may bo towod away at tho osvnor's 
oxpenoc. 

Authority G.S- 143B-461. 

.0902 MOREHEAD CITY ORDINANCE 
SCHEDULES 

a) Tho following ooh e dulo lieto maximum opood limito 



for specified otrocts in tho Morehcad City Terminal: 
NAME OF STREET /MAXIMUM SPEED UM ff 



Arondell Str ee t 



20 MPH 



Terminal Road 



20 MPH 



Warehouse Road 



20 MPH 



Lumbar Road 



20 MPH 



Garag e Road 

North Gate Road 



20 MPH 



20 MPH 



Storage Road 



20 MPH 



Barge Terminal North 



20 MPH 



Barge Terminal East 



20 MPH 



First Street 

Second Strcot 



20 MPH 



20 MPH 



Third Street 



20 MPH 



Fourth Str ee t to Garag e Street 
Fifth Str e et 



20 MPH 



20 MPH 



First Street North 



20 MPH 



Second Street North 



20 MPH 



Fourth Str e et North 



20 MPH 



fb^ — The following sohedulo lists the locations of stop 
signs in the Morehead City TcnH HW^r 

Arend e ll Street at Main Gate Hous e (2 signs). 
South e ast corn e r of Ar e ndell Street and T e rminal - 
Road. 

Southwest comor of Warehouse Road and Terminal 
Road. 

Northwe s t oom e r of First Str ee t and War e hous e 
Road. 

Southwest comor of Old Transit Road and T e rminal 
Road. 

Northv%'o s t com e r of Old Transit Road and S e cond 
Street. 

Southeast comor of Old Tran s it Road and Second 
Str ee t. 

North e a s t oomer of Warehouse Road and S e cond 
Street. 

Southwest comer of Warehouse Road and Second 
Strcot 

Southeast com e r of S e cond Stre e t and Garag e Road. 
Southeast comer of Third Street and Garage Road. 
Northwe s t comor of Third Street and Warehouse 
Road. 

North e a s t oom e r of Garag e Road and Fourth Str ee t. 
Northea s t comor of Fourth Street and Warehouse 
Road. 



Northwest comor of Fourth Street and Old Transit 
Road. 

Southeast corn e r of Fourth Str ee t and Old Transit 
Road. 

Southwest comor of Fifth Street and Fourth Street. 
Southw e st com e r of Lumber Road and Fourth Street- 
North Gat e Road at Gat e House (2 signs). 
Southeast comor of Fourth Stroot N and North Gato 
Road. 

Northsv e st oomer of Fourth Str ee t N and North Gate 
Road. 

Southwest comor of Second Stroot and North Gate 
Road. 

Northw es t oom e r of S e cond Str ee t and North Gate 
Road. 

Northeast comor of Bargo Terminal N and Second 
Street N. 

North e ast comer of Ar e nd e ll — Str ee t and Fourth 
Str ee t. 

Southeast comer of Arondell Street and Fourth Street. 
fe-) — The following schedule lists tho locations of yiold 
signs in the Mor e h e ad Git)' T e rmiH ak- 

Southw e st oomor of First Street and Garag e Road. 

Northwest comer of North Gate Road and Highway 

Tot 

South e ast oomer of T e rminal Road and Barg e Termi 

nal Road East. 

Northeast — comer of Arendell — Stroot — and — Fourth 

Street. 

Southwest com e r of Arendell Str ee t and Fourth 

Street. 

(d) The following sohodule lists the locations of railroad 
waming signs in tho Morehead City TormiR ah- 

East sid e of Fourth Str ee t at int e rs e ction of ArondoU 

Str ee t. 

North side of Arondell Stroot at intersection of Fourth 

Street. 

fiftst — side — of T e rm iflftl — Road — at — intorsootion — ei 

Ar o ndell Str oo t. 

North si de of Barge Terminal East at intersection of 

Arondell Street. 

W e st sid e of First Str ee t N at int e rs e ction of Arondell 

Stroot. 

North side of Fifth Street at Northwest comer of 

W e st sid e of Fifth Stre e t opposite w e st sid e of c e nter 

of Warehouse 8. 

North side of Lumber Road at intersection of Fifth 

Street. 

South e ast comer of Fourth Str e et and Old Transit 

Road. 

Northwest comor of Fourth Street and Old Transit 

Road. 

(e) TTie following schedule lists th e locations of no thru 
traffic s ign s in th e Mor e h e ad City T e rminal: 

Northeast comor of Terminal Road and Arondell 
Street. 



1049 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



PROPOSED RULES 



\ 



) 



Southwoot oomor of North Gate Road and Socond 
Stroot North. 

(f) At tho preBont, do not ontor signs ar e not applioabl e 
to the Morohoad Cit^' Tormina). 

(g) The foUos^'ing oohodulo lists parking ordinaneos in tho 
Mor e h e ad C\V,' Torminal: 

f4) Tho following oohcxiulo lists th e location of no 

parlcing between signs aroao: 
East sido of Transit Shod 3 between Pier and Old 
Transit Road. 

Wost sido of Warehouse 10 botsvoon Old Transit 
Road and Northwest comer of Building. 
Wost oido of Torminal Road botv i oen Old Transit 
Road and Pi e r. 

East sido of T e rminal Road between Old Transit 
Road and Pier. North sido of Phosphate Drive 
House between Terminal Road and Pier- 
North sid e of Old Transit Road at Tank Ar e a 
botwoon Fourth Str ee t and Fifth Str ee t. 
Refueling area oast of Warehouse 9 betv i 'oon 
Terminal Road and Fourth Street. 

^3) Th e following rules id e ntify' parking ar e as e otab 

liohod for uoo by employees: 

(A) The following areas are designated parking 

areas for vchieles owned by employees of 
the Porto Authority and employ e es of th e 
Port Authorit)''s t e nants on the Morehead 
City Terminal: 

(i^ That — ftfea — immediately — s outh — ef 

Lumb e r Road, bound e d on th e w e st 
by 5th Str ee t, on th e oast by '1th 
Street and on tho s outh by the gl)'col 
storage tonics; 

-(4t) Th e ar e a imm e diat e ly north of th e 

truck — s cal es — fronting — en — Garag e 
Road. 

(B) Both of tho foregoing areas are to bo ado 

quatoly mark e d with s ign s which signs will 
stat e th e parking r e strictions. 
Oi) Tho following schedule lists tho no smoking rootrie 
tions at the Morehead City Terminal: 

f4^ Smoking is prohibit e d in all areas south of th e 

railroad tracks along Transit Road and on th e 
Open Berth Areas. — Smoking will be permitte d 
only within designated smoking areas. 

(3) Smoking is also prohibit e d within Storag e War e 

houses A, 5, 6, 7, 8 , 9, and 10 and signs ar e 

posted in the following location s : 

East and West ends of North and South sides of 

Transit Sh e d 1. 

East and W e st e nda of South sid e of Transit Sh e d 

3t 

East and West ends of North and South sides of 

Transit Sh e d 3. 

East and W e st e nds of North side of War e hou se 

East and Wost ends of North side of Warehouse 



North and South e nds of East and W e st sides of 

War e hou se 6. 

North and South ends of East and Wost sides of 

Warehouse 7. 

North and South e nds of East and W e st sides of 

War e hous e 8 . 

North and South ends of East and Wost sides of 

Warehouse 9. 

East and W es t e nds of North and South sid e s of 

War e hous e 10. 

East and West sides and North and South ends of 

Transit Shod 4 . 

Authority G.S. 143B-461. 

SUBCHAPTER 13F - PERSONNEL 

SECTION .0300 - GENERAL 
EMPLOYMENT POLICIES 

.0301 GENERAL 

(a) The Stat e Porto Authority' P e rsonn e l Manual s e ts forth 
the policies and regulations concoming personnel manage 
ment at tho North Carolina State Ports Authority. — ks 
purpos e is to assur e faim e oa and e quality' in th e handling of 
all p e rsonn e l matt e rs. — Should chang e s or additions in 
policies bo required, now supplements will bo issuod for 
inclusion in the manual. 

(b) Major s e ctions of th e manual ore: 

^ Equal Employment Opportunity' Policy Statement 

and Sexual Harassment Policy Statement, 

(3) general employment policies, 

^ pay plan. 

f4-) leave and s e paration, 

(5) employee relations, 

(6) drug testing program. 

fe) — Copi e s of th e manual will be issued to e ach d e part 
m e nt h e ad and to e ach first lino sup e rvisor. 

Authority G.S. 1438-454(5); 150B-14. 

.0302 PERSONNEL QUESTIONS 

Any questions concerning personnel matters should bo 
diroctod to tho Personnel Officer of tho Ports Authority at 
th e following address: 

P e rsonnel Officer 
North Carolina State Ports Authority 

P.O. Box 9002 
Wilmington, North Carolina 2 8 ^102 

Authority G.S. ] 438-454(5). 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1050 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Human Resources, 
Division of Vocational Rehabilitation Services intends to 
amend rules cited as 10 NCAC 20B .0204, .0205, .0206, 
.0208, .0209, .0210, .0214, .0218, .0222, .0224. .0226, 
.0227; 20C .0603. Notice of Rule-making Proceedings was 
published in the Register on July 15, 1996. 

Proposed Effective Date: April 1, 1997 

A Public Hearing will be conducted at 6:00 p.m. on 
October 16, 1996 at the Main Conference Room, Division of 
Vocational Rehabilitation Services, 805 Ruggles Drive, 
Dorothea Dix Campus, Raleigh, NC. 

Reason for Proposed Action: 

10 NCAC 20B .0204, .0205, .0206, .0208, .0209, .0210, 
.0214, .0218, .0222, .0224, .0226, and .0227- are being 
amended to clarify' that the state plan includes the State Plan 
for Independent Living Services and to indicate that certain 
duties related to the appeals process, which were previously 
performed by the Division 's Deputy Director, will now be 
performed by the Chief of Operations as the Division no 
longer has a Deputy Director position, to clarify language, 
and to remove reference to subpoenas in .0214 as the 
Division does not have authority to issue subpoenas. 
10 NCAC 20C .0603 - is being amended because the rule 
does not meet all the requirements of the final federal 
regulation on the order of selection for service process. The 
current priority No. Three for "individuals being served by 
a program designed to help individuals transition from 
school to work" does not meet the requirement that priority 
be based on sex'erity of disability. 

Comment Procedures: Comments may be presented orally 
or in writing at the hearing. Oral statements may be limited 
at the discretion of the hearing officer. Written comments 
may also be submitted until October 31, 1996 to Jackie 
Stalnaker, Division of Vocational Rehabilitation Services, 
P.O. Box 26053. Raleigh, NC 27611. To obtain additional 
information or indicate need for alternative communication 
format contact Ms. Stalnaker in writing or by phone (919) 
733-3364 or TDD (919) 733-5924. In addition, a fiscal note 
is available upon written request from the same address. 

Fiscal Note: These Rules do not affect the expenditures or 
rexenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 20 - VOCATIONAL REHABILITATION 

SUBCHAPTER 20B - PROCEDURE 



SECTION .0200 - CONTESTED CASES: 

ADMINISTRATIVE REVIEWS: APPEALS 

HEARINGS 

.0204 DIVISION ACTIONS IN RESPONSE 
TO REQUEST 

(a) Upon receipt of a request for an appeals hearing, the 
regional director shall immediately forward the original 
request to the division's dcput>' director Chief of Operations 
for appointment of a hearing officer to conduct the appeals 
hearing. 

(b) If the individual has requested an administrative 
review in addition to an appeals hearing, the regional 
director shall: 

(1) make a decision to conduct the administrative 
review or appoint a designee to conduct the 
administrative review who: 

(A) has had no previous involvement in the 
issues currently in controversy; 

(B) can conduct the administrative review in an 
unbiased way; and 

(C) has a broad working knowledge of the 
division's policies and procedures and the 
State Plan for Vocational Rehabilitation 
Services or Independent Living Services (as 
appropriate); and (otato plan); and 

(2) proceed with, or direct the designee to proceed 
with an administrative review according to the 
provisions of Rules .0205, .0208, and .0209 of 
this Section. 

(c) The regional director shall send the applicant or client 
written acknowledgment of receipt of the request and inform 
the individual that additional information will be sent 
regarding the administrative review and/or app e alo hearing. 
and appeals hearing or only the appeals hearing. 

(d) The regional director shall provide the Client Assis- 
tance Program with a copy of the request and the response 
to the request. 

Authority G.S. 143-545 A; 150B-1: 34 C.F.R. 361.48. 

.0205 SCHEDULING AND NOTICE OF 
ADMINISTRATIVE REVIEW 

(a) If an administrative review is to be conducted, the 
regional director or designee shall: 

(1) set a date, time and place for the administrative 
review; 

(2) send written notification by certified mail to the 
applicant or client and the individual's parent, 
guardian or representative, as appropriate, of the 
date, time and place for the administrative review; 

(3) advise the applicant or client in the written notice 
that a hearing officer will be appointed by the 
d e puty dir e ctor Chief of Operations to conduct a 
hearing if the matter is not resolved in the admin- 
istrative review and that the applicant or client 
will also receive a written notice from the hearing 



1051 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



PROPOSED RULES 



officer regarding the formal appeals hearing 
which will be held after the administrative review; 
and 
(4) notify the Director of the Client Assistance Pro- 
gram (CAP) and other individuals to be involved 
in the administrative review of the request and the 
date, time and place for the administrative review. 
This notification may be by phone or in writing, 
(b) Prior to the administrative review, the regional 
director or designee shall review all previous decisions and 
casework related to the applicant or client and seek whatever 
consultation, explanation, documentation, or other informa- 
tion that is deemed necessary, utilizing the division's CAP 
Director as appropriate. 

Authority G.S. 143-5454; 150B-1; 34 C.F.R. 361.48. 

.0206 APPOINTMENT OF HEARING OFFICER 

Upon receipt of the applicant's or client's request for an 
appeals hearing from the regional director, the dopufy 
dircKjtor Chief of Operations shall arrange for the appoint- 
ment of an impartial hearing officer who is in the pool of 
persons qualified as defined in P.L. 102-569, Section 7(28) 
and who is mutually agreed upon by the Director and the 
individual or the individual's representative. 

Authority G.S. 143-545A; 1508-1; P.L. 102-569. 

.0208 ADMINISTRATIVE REVIEW 

(a) Within 15 days of the original request for an adminis- 
trative review by the applicant or client, the regional 
director or designee shall hold the administrative review 
with the applicant or client; the individual's parent, guardian 
or representative, as appropriate; the CAP Director, as 
appropriate; and other individuals deemed necessary by the 
regional director or designee. 

(b) Within five working days of the administrative 
review, the regional director or designee shall make a 
decision and notify the applicant or client and others using 
the following procedures: 

(1) compile a written report of the administrative 
review outlining the proposes of the administrative 
review, the participants, the decision that was 
reached, and the rationale for the decision. 

(2) send the written report containing the decision to 
the applicant or client by certified mail with 
return receipt requested, with a copy being placed 
in the individual's official case record, and copies 
being forwarded to the deputy director Chief of 
Operations and the CAP director; and 

(3) provide instructions to the applicant or client of 
steps that may be taken in response to the decision 
and the deadline for the responses. A form 
indicating agreement with the decision and re- 
questing that the appeals hearing be cancelled 
shall be included for the applicant's or client's 
signature if the individual agrees with the deci- 



sion. 

Authority G.S. 143-545 A; 150B-1; 34 C.F.R. 361.48. 

.0209 RESPONSE TO ADMINISTRATIVE 
REVIEW DECISION 

(a) If the applicant or client is satisfied with the decision 
resulting from the administrative review, the individual shall 
sign the form described in Rule .0208(l5)(3) of this Section 
and submit it to the regional director within five days of 
receipt of the decision. The regional director shall inform 
the dopufy director Chief of Operations of the request to 
cancel the appeals hearing immediately and forward the 
form to the d e puty dir e ctor Chief of Operations who shall 
submit it to the hearing officer. 

(b) If the hearing officer does not receive a written 
request from the applicant or client that the hearing be 
cancelled, the hearing shall be conducted as scheduled 
unless negotiations produce a settlement that is satisfactory 
to both parties prior to the hearing. 

(c) If the hearing is cancelled, the hearing officer shall 
send the applicant or client and the division written notice 
of the cancellation in the same manner as required for notice 
of the hearing in Rule .0207(d) of this Section. A copy of 
the notice of cancellation shall be sent to the Client Assis- 
tance Program. 

Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. 

.0210 ADMINISTRATIVE REVIEW 
BY CHIEF OF OPERATIONS 

In situations where the issue currently in controversy 
involves action taken by the central office of the division, 
the d e pufy dir e ctor Chief of Operations or a designee of the 
d e puty' dir e ctor Chief of Operations shall be responsible for 
the duties prescribed for the regional director in these rules. 

Authority G.S. 143-545 A; 150B-1; 34 C.F.R. 361.48. 

.0214 PRE-HEAREMG CONFERENCE 

(a) Upon notice to all parties, the hearing officer may 
instruct the parties to participate in a pre-hearing confer- 
ence. 

(b) The conference shall be informal in nature. 

(c) The conference shall be noted in the notice of hearing 
or in a subsequent notice if a conference is later determined 
to be necessary by the hearing officer. 

(d) The purpose of the conference will be to discuss: 

(1) the possibility of simplification of issues, 

(2) stipulation of facts or findings, 

(3) identification of areas where evidence will be 
needed, 

(4) Indication of discovery, and discover)' or subpoo 
nao noodod, and 

(5) any other matters which will reduce costs or save 
time or otherwise aid expeditious disposition of 
the case. 



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1052 



PROPOSED RULES 



Authority G.S. 143-545 A; 150B-1; 34 C.F.R. 361.48. 



Authority G.S. 143-545 A; 150B-1; 34 C.F.R. 361.48. 



.0218 DISQUALIFICATION OF HEARING 
OFFICER 

(a) If at any time the hearing officer believes he or she 
cannot conduct the appeals hearing in a fair and impartial 
manner, the hearing officer shall submit to the d e put)' 
director Chief of Operations a written statement indicating 
why he or she should be disquaUfied from the case. Submis- 
sion of the statement shall disqualify the hearing officer. 
The doput)' dir e ctor Chief of Operations shall inform all 
parties of the disqualification and the reasons therefor. 

(b) If a party to the case believes that the hearing officer 
of record cannot conduct the hearing in a fair and impartial 
manner, the party shall submit an affidavit to the hearing 
officer for consideration. The hearing officer shall deter- 
mine the matter as part of the record in the case, oqso, and 
this dotormination shall bo oubjoot to judicial r e vi e w at th e 
oonoluoion of tho proceeding. 

(c) When a hearing officer is disqualified or it is imprac- 
ticable for the hearing officer to proceed with the hearing, 
another hearing officer shall be assigned by the d e put>' 
dir e ctor Chief of Operations to proceed with the case. 
However, if it is shown to the dcput)' director Chief of 
Operations or the newly assigned hearing officer that 
substantial prejudice to any party will result from continua- 
tion of the case then either: 

(1) the case shall be dismissed without prejudice; or 

(2) all or part of the case shall be repeated as neces- 
sary to substantially prevent or substantially 
remove the prejudice. The d e puty dir e ctor Chief 
of Operations shall promptly inform all parties of 
the decision to assign a new hearing officer, that 
the case has been dismissed without prejudice, or 
that all or part of the case is to be repeated. Such 
notification shall include a statement of the rea- 
sons for the decision. 

Authority G.S. 143-545A; 150B-1: 34 C.F.R. 361.48. 

.0222 FAILURE TO APPEAR 

(a) If the applicant or cUent fails to appear at the hearing 
and does not have a representative present, the hearing 
officer shall cancel the hearing. 

(b) The appUcant or client may submit a written request 
for rescheduling of the hearing to the d e puty dir e ctor Chief 
of Operations . The request shall provide an explanation of 
the individual's failure to app)ear at the hearing or to have a 
representative present. The deputy director Chief of 
Operations may instruct the hearing officer to reschedule the 
hearing upon a showing of good cause by the applicant or 
client. "Good cause" may include death or incapacitating 
illness of the party or an immediate family member of the 
party, the party's representative, or the party's attorney; 
involvement in an accident that prevents timely notification 
of the hearing officer; or failure to receive proper notice of 
the hearing. 



.0224 DIVISION DIRECTOR'S REVIEW 
AND FINAL DECISION 

(a) The division director may review the hearing officer's 
decision and render the final decision. 

(b) The division director's decision to review the hearing 
officer's decision shall be based on the following standards 
of review: 

(1) Is the hearing officer's decision arbitrary, capri- 
cious, an abuse of discretion, or otherwise unrea- 
sonable? 

(2) Is the hearing officer's decision supported by 
substantial evidence, i.e., consistent with facts and 
applicable federal and state policy? 

(3) In reaching the decision, has the hearing officer 
given appropriate and adequate interpretation to 
such factors as: 

(A) the federal statute and regulations as they 
apply to specific issue(s) in question; 

(B) the state plan as it applies to the specific 
issue(s) in question; 

(C) division proc e dur e rules as they apply to 
the specific issue(s) In question; 

(D) key portions of conflicting testimony; 

(E) division options in the delivery of services 
where such options are permissible under 
the federal statute; and 

(F) restrictions in the federal statute with re- 
gard to such supf)ortive services as mainte- 
nance and transportation, transportation; 

fG) approved federal or division policy as it 
r e lat e s to th e ioou e (D) in quootion. 

(c) If the division director decides to review the hearing 
officer's decision, the director shall send the written 
notification and allow the submission of additional evidence 
as required by 34 C.F.R. 361.48(c)(2)(iv) and (vii). The 
written notification shall be given to the applicant or client 
personally or by certified mail. If given by certified mail, 
it shall be deemed to have been given on the delivery date 
appearing on the return receipt. 

'd) Upon a determination to review the hearing officer's 
decision, the division director shall make the fmal decision 
and provide the written report thereof as required by 34 
C.F.R. 361.48(c)(2)(viii) and (ix). The division director 
shall not overturn or modify a decision, or part of a deci- 
sion, of an impartial hearing officer that supports the 
position of the individual except as allowed under P.L. 
102-569, Section 102(d)(3)(C). The fmal decision shall be 
given to the applicant or client personally or by certified 
mail. If given by certified mail, it shall be deemed to have 
been given on the delivery date appearing on the return 
receipt. 

(e) TTie hearing officer's decision shall be the final 
decision under the conditions specified in 34 C.F.R. 
361.48(c)(2)(v). 



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PROPOSED RULES 



(f) The division director shall forward a copy of the final 
decision, whether issued under (d) or (e) of this Rule, to the 
doput)' director Chief of Operations , the CAP director, the 
regional director, and the applicant's or client's representa- 
tive, as appropriate. A copy shall also be included in the 
individual's official case record. 

Authority G.S. 143-545A; 150B-1; P.L. 102-569, s. 102(d); 
34 C.F.R. 361.48. 

mie RECORD 

(a) The official records of appeals hearings shall be 
maintained in the central office of the division. 

(b) Any person wishing to examine a hearing record shall 
submit a written request to the deputy dir e ctor Chief of 
Operations in sufficient time to allo' i v who shall have the 
record to b e prepared for inspection, including the removal 
of any confidential material. 

Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. 

Mil TRANSCRIPTS 

Any person desiring a transcript of all or part of an 
appeals hearing shall contact the office of the deputy 
director. Chief of Operations. A fee to cover the cost of 
preparing the transcript shall be charged, and the party may 
be required to pay the fee in advance of receipt of the 
transcript. The transcript may be edited to remove confi- 
dential material. 

Authority G.S. 143-545A; 150B-1; 34 C.F.R. 361.48. 

SUBCHAPTER 20C - PROGRAM RULES 

SECTION .0600 - ORDER OF SELECTION 
FOR SERVICES 

.0603 PRIORITY CATEGORIES 

(a) The priority categories for the order of selection for 
services for eligible individuals are as follows: 

(1) Category One. Individuals who have the most 
severe disabilities; 

(2) Category Two. Individuals with severe disabili- 
ties; 

{^ Category Three. — Individuals with a non severe 

pommnent disability' (ioD) who would bo sop i ' e d by 
a program dooign e d to help th e individual tranoi 
tion from school to work; 

(3) (4)Category Few^Three. Individuals with a non- 
severe and permanent disability dioQbility(i e s) who 
will need multiple vocational rehabilitation ser- 
vices to attain a suitable employment outcome; 
and 

(4) (§)Category Fiv e Four . Any eligible individual 
who does not qualify for placement in a higher 
priority category. 

(b) The Division shall follow the provisions of P.L. 102- 



569. Section 101(a)(13)(B) which is incorporated by 
reference regarding pubhc safety officers when applicable In 
its order of selection. This incorporation by reference shall 
automatically include any later amendments to the cited 
section of the public law as allowed by G.S. 150B-21.6 A 
copy of the cited section of the public law may be obtained 
at no cost from the Division. 

(c) An individual's priority category is determined when 
eligibility is determined as outlined in Rule .0203 of this 
Subchapter. 

Authority G.S. 143-545 A; 143-546A; P.L. 102-569, Section 
101(a)(5)(A); 34 C.F.R. 361.36. 

Notice is hereby given in accordance with G.S. 
150P-21.2 that the Department of Human Resources, 
Division of Vocational Rehabilitation Services intends to 
ameiui rule cited as 10 NCAC 20D .0204. Notice of Rule- 
making Proceedings was published in the Register on July 
15, 1996. 

Proposed Effective Date: July 1, 1997 

A Public Hearing will be conducted at 6:00 p.m. on 
October 16, 1996 at the Main Conference Room, Division of 
Vocational Rehabilitation Services, 805 Ruggles Drive, 
Dorothea Dux Campus, Raleigh, NC. 

Reason for Proposed Action: Due to a reduction in force 
of staff within the Division of Vocational Rehabilitation 
Services directly responsible for administering the standards 
of client services delivery review process within Community 
Rehabilitation Programs, the Division must pursue alterna- 
tive measures to ensure that expected levels of client service 
delivery standards are met. The acceptance of National 
standards and accreditation process or the acceptance of 
Division of Mental Health/Developmental Disabili- 
ties/Substance Abuse Services standards and accreditation 
process will enable the Division to document through third 
parties that acceptable standards of service delivery are in 
place at Community Rehabilitation Programs contracting 
with the Division of Vocational Rehabilitation Services to 
provide Vocational Evaluation/Vocational Work Adjustment 
Services and/or Supported Employment Services. This rule 
change is also in response to requests from Community 
Rehabilitation Programs that the Division allow them to 
avoid undergoing National Accreditation if they currently are 
accredited by the Division of Mental Health/Developmental 
Disabilities/Substance Abuse Services. The initiation of this 
rule change will also further enhance State Government's 
efforts to contract work to private enterprise. 

Comment Procedures: Comments may be presented orally 
or in writing at the hearing. Oral statements may be limited 
at the discretion of the hearing officer. Written comments 



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October 1, 1996 



1054 



PROPOSED RULES 



max also be submitted until October 31, 1996 to Jackie 
Stalnaker, Division of Vocational Rehabilitation Services, 
P.O. Box 26053, Raleigh. NC 27611. To obtain additional 
information or indicate need for alternative communication 
format contact Ms. Stalnaker in writing or by phone (919) 
733-3364 or TDD (919) 733-5924. In addition, a fiscal note 
is available upon written request from the same address. 

Fiscal Note: Tliis Rule does not affect the expenditures or 
revenues of state or local government finds. This Rule does 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

SUBCHAPTER 20D - STANDARDS FOR 
FACILITIES AND PROVIDERS 

SECTION .0200 - STANDARDS FOR 
FACILITIES 

.0204 COMMUNITY REHABILITATION 
PROGRAM STANDARDS 

{e^ — The Divioion of Vocational Rehabilitation Sorvicca 
prcscntlv utilizes thoso community sheltered v i orkahops and 
rehabilitxition faoilitios which have boon d e v e loped through 
cooperative working r e lationships with th e Division and 
have demonstratod an ability through agency reviews to 
provide a comprehensive range of quality rehabilitation 
oorvic e s. — In addition to th e afor e m e ntion e d conditions of 
dovoloping and maintaining coop e rativ e working r e lation ' 

ships, the Divi s ion will require that by January 1. 1982. all Authority G.S. 143-545A: 34 C.F.R. 361.45. 
community sheltered workshops and rehabilitation facilities 

providing servic e s to cli e nts of th e Division to bo aocr e dit e d ^^^^^^^"'"'"'^"^"^^^^^^^^^^^^^~ 
by th e Commission on Accreditation of R e habilitation 
Facilities (CARF). 

(\e>) — Community sheltered workshops and rehabilitation 
faciliti e s ootabliohod aft e r Jonuap , ' 1. 1980 for the purpos e 
of providing s e rvices to clients of the Division must apply 
for and receive accreditation — from the Commission on 
Accreditation of Rehabilitation Facilities (CARF) no later 
than th e end of the fourth year of operation. — TTio establish 
ment dat e for purpos e s of this Rule ^ ill b e e stablished in 

writing to the community she l tered workshop or rehabilita Proposed Effective Date: Aprd 1, 1997 

tion facility by the Director of the Division of V^ocational 



is identified and the program is reimbursed 
based on the number of hours of actual ser- 
vices provided. 
(2) "Fixed-level annual reimbursement process" 
means a funding method in which the Division 
reimburses the program for expenditures 
monthly at a rate of one-twelfth (1/12) of a 
negotiated annual budget. 

(c) Community rehabilitation programs that apply for a 
fixed-level annual reimbursement process shall be accredited 
by the Commission on Accreditation of Rehabilitation 
Facilities (CARF), the Accreditation Council, or the 
International Center for Clubhouse Development. 

(d) Community rehabilitation programs providing 
evaluation, adiustment. or supported employment services 
which are not accredited by any of the accreditation bodies 
specified m Paragraph (c) of this Rule may apply for fee for 
service funding i_f they are accredited by the Division of 
Mental Health. Developmental Disabilities, and Substance 
Abuse Services. 

(e) Any program accredited by one of the specified 
accrediting bodies shall submit to the Division a copy of its 
accreditation report within 30 days after the program 
receives its report each time it is surveyed by the accrediting 
body. The program shall notify the Division of any action 
taken that affects its accreditation status, either temporarily 
of permanently. The Division may conduct annual valida- 
tion surveys to assure compliance. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

Notice IS hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for Health 
Services intends to amend rule cited as 15 A NCAC 13B 
.1627. Notice of Rule-making Proceedings was published in 
the Register on July 15. 1996. 



R e habilitation S e rvic es . 

(e) — As of Januar>' 1. 1983. e xc e pt for thos e e xc e ptions 
noted in .0207(b) of thi s Rule, a community workshop or 
rehabilitation facility must be accredited by the Commission 
on Accreditation of R e habilitation Facilities in ord e r to 
provide s e rvic e s to cli e nts of th e Division. 

(a) The Division shall utilize only those community 
rehabilitation programs that are accredited according to the 
provisions of this Rule. 

(b) The following definitions apply to the terms as used 
in this Rule: 

( 1) "Fee for service funding" means an hourly 
rate, fee for service method of funding in 



A Public Hearing will be conducted at 6:00 p.m. on 
October 16, 1996 at the Ground Floor Hearing Room, 
Archdale Building, 512 N. Salisbury Street, Raleigh. NC. 

Reason for Proposed Action: Tlie purpose of this Rule 
amendment is to require owners and operators of unlined 
landfills to provide a more environmentally sound cap system 
than is currently required for unlined landfills at closure. 
Further the amendment avoids fiscal impact to the regulated 
comirumity by providing that the increased cost of a superior 
cap system may be covered by appropriate delay of that 
landfill's closure. 



which an hourly cost of providing the service Comment Procedures: All persons interested in these 



1055 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



PROPOSED RULES 



matters are invited to attend the public hearing. Written 
comments may be presented at the public hearing or submit- 
ted to Ms. Joan Troy, Division of Waste Management, Solid 
Waste Section, 401 Oberlin Road, Suite 150, Raleigh, NC 
27605. All written comments must be received by October 
31, 1996. Persons who wish to speak at the hearing should 
contact Ms. Troy at (919) 733-0692 (extension 271). Persons 
who call in advance of the hearing will be given priority on 
the speaker 's list. Oral presentation lengths may be limited 
depending on the number of people that wish to speak at the 
public hearing. Only persons who have made comments at 
a public hearing or who have submitted written comments 
will be allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must either 
clarify previous comments or proposed changes from staff 
pursuant to comments made during the public hearing 
process. 

IT IS VERY IMPORTANT THAT ALL INTERESTED 
AND POTENTIALLY AFFECTED PERSONS, GROUPS, 
BUSINESSES. ASSOCIATIONS, INSTITUTIONS OR 
AGENCIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE COMMISSION FOR HEALTH SER- 
VICES THROUGH THE PUBUC HEARING AND 
COMMENT PROCESS, WHETHER THEY SUPPORT OR 
OPPOSE ANY OR ALL PROVISIONS OF THE PRO- 
POSED RULES. THE COMMISSION MAY MAKE 
CHANGES TO THE RULES AT THE COMMISSION 
MEETING IF THE CHANGES COMPLY WITH G.S. 
150B-2L2(f). 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 13 - SOLID WASTE MANAGEMENT 

SUBCHAPTER 13B - SOLID WASTE 
MANAGEMENT 

SECTION .1600 - REQUIREMENTS FOR 

MUNICIPAL SOLID WASTE LANDFILL 

FACILmES (MS\\'LFs) 

.1627 CLOSURE AND POST-CLOSURE 

REQUIREMENTS FOR MSWLF FACILITIES 

(a) Purpose. This Rule establishes criteria for the 
closure of all MSWLF units and subsequent requirements 
for post-closure compliance. The owner or operator is 
required to develop specific plans for the MSWLF facility 
under Rule .1629. .1629 of this Section. 

(b) Scope. 

(1) Closure. Standards are established for the sched- 
uling and documenting closure of all MSWLF 
units, and designing the cap system. Construction 
requirements for the cap system incorporate 



specific requirements from Rule .1624 of this 
Section. 
(2) Post-closure. Standards are established for the 
monitoring and maintenance of the MSWLF 
unit(s) following closure, 
(c) Closure criteria. 

(1) New and existing MSWLF units and lateral 
expansions shall install a cap system that is de- 
signed to minimize infiltration and erosion. The 
cap system shall be designed and constructed to: 

(A) Have a permeability less than or equal to 
the permeabiUty of any base liner system or 
the in-situ subsoils underlaying the landfill, 
or the permeability specified for the fmal 
cover in the effective permit, or a perme- 
ability no greater than 1 x 10' cm/sec, 
whichever is less; 

(B) Minimize infiltration through the closed 
MSWLF by the use of a low-permeability 
barrier that contains a minimum 18 inches 
of earthen material; and 

(C) Minimize erosion of the cap system and 
protect the low-permeability barrier from 
root penetration by use of an erosion layer 
that contains a minimum of six inches of 
earthen material that is capable of sustain- 
ing native plant growth. 

(2) The Division may approve an alternative cap 
system if the owner or operator can adequately 
demonstrate the following: 

(A) The alternative cap system will achieve an 
equivalent or greater reduction in infiltra- 
tion as the low-permeability barrier speci- 
fied in Subparagraph (1) of this Paragraph; 
and 

(B) The erosion layer will provide equivalent 
or improved protection as the erosion layer 
specified in Subparagraph (3) of this Para- 
graph. 

(3) Construction of the cap system for all MSWLF 
units shall conform to the requirements set forth 
in Subparagraphs (b)(8), fb)(9) and (b)(15) of 
Rule .1624 and the following requirements: 

(A) Post-settlement surface slopes shall be a 
minimum of five percent and a maximum 
of 25 percent; and 

(B) A gas venting or collection system shall be 
installed below the low-permeability barrier 
to minimize pressures exerted on the bar- 
rier. 

(4) Prior to beginning closure of each MSWLF unit 
as specified in Subparagraph (5) of this Para- 
graph, an owner or operator shall notify the 
Division that a notice of the intent to close the 
unit has been placed in the operating record. 

(5) The owner or operator shall begin closure activi- 
ties of each MSWLF unit no later than 30 days 



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1056 



PROPOSED RULES 



after the date on which the MSWLF unit receives 
the known final receipt of wastes or, if the 
MSWLF unit has remaining capacity and there is 
a reasonable Ukelihood that the MSWLF unit will 
receive additional wastes, no later than one year 
after the most recent receipt of wastes. Exten- 
sions beyond the one-year deadline for beginning 
closure may be granted by the Division if the 
owner or operator demonstrates that the MSWLF 
unit has the capacity to receive additional wastes 
and the owner or operator has taken and will 
continue to take all steps necessary to prevent 
tiireats to human health and the environment from 
the unclosed MSWLF unit. 

(6) The owner or operator of all MSWLF units shall 
complete closure activities of each MSWLF unit 
in accordance with the closure plan within 180 
days following the beginning of closure as speci- 
fied in Subparagraph (5) of this Paragraph. 
Extensions of the closure period may be granted 
by the Division if the owner or operator demon- 
strates that closure will, of necessity, take longer 
than 180 days and they have taken and will 

continue to take all steps to prevent threats to 
human health and the environment from the 

unclosed MSWLF unit. 

(7) Following closure of each MSWLF unit, the 
owner or operator shall notify the Division that a 
certification, signed by the project engineer 
verifying that closure has been completed in 
accordance with the closure plan, has been placed 
in the operating record. 

(8) Recordation. 

(A) Following closure of all MSWLF units, the 
owner or operator shall record a notation 
on the deed to the landfill facility property, 
or some other instrument that is normally 
examined during tide search, and notify the 
Division that the notation has been re- 
corded and a copy has been placed in the 
operating record. 

(B) The notation on the deed shall in perpetuity 
notify any potential purchaser of the prop- 
erty that: 

(i) The land has been used as a landfill 

facility; and 
(ii) Its use IS restricted under the closure 

plan approved by the Division. 

(9) The owner or operator may request permission 
from the Division to remove the notation from the 
deed if all wastes are removed from the facility. 

(10) Existing MSWLF units. TTie following criteria 
shall apply to existing MSWLF units not designed 
and constructed with a base liner system permitted 
by the Division. 

(A) The existing — MSWLF unit shall — ccoso 
roociving solid waste on or before January' 



1, 1998. The permittee of a MSWLF unit 
receiving municipal solid waste on the 
effective date of this Rule shall submit an 
amended transition plan by April \^ 1997. 
TTie amended transition plan shall include 
the following: 

(i) A cap system designed in accordance 
with Rule .1624(b)f8), (9) and (15) 
of this Section and the following 
requirements: 

(I) On slopes less than or equal 
to 8 percent, the cap system 
shall consist of a composite 
liner with a geomembrane 
liner and either a compacted 
clay layer of j_8 inches of soil 
with a permeabiUty no greater 
than i X 10 - cm/sec or a 
geosynthetic clay liner: 
(II) On slopes greater than 8 per- 
cent, the cap system shall 
consist of either a compacted 
clay layer of 18 inches of soil 
with a permeability of 1 x 10; 
- cm/sec or a geosynthetic 
clay liner or a geomembrane 
liner; and 
(irn Other components of the cap 
system shall be required as 
necessary to protect the liner 
system, sustain vegetation, 
promote drainage, minimize 
soil loss due to erosion and 
provide slope stability, 
(ii) An analysis of the costs of the pro- 
posed design in comparison to the 
cap design specified in Subparagraph 
(c)(1) of this Paragraph; 
(iii) The current costs of operation of the 
MSWLF unit on a tonnage basis; 
and 
(iv) A proposed closure date based on 
the amount of time after January \^ 
1998, not to exceed five years, nec- 
essary to fund the difference be- 
tween the proposed design and the 
cap design specified in Subparagraph 
(c)(1) of this Paragraph. The pro- 
posed closure date shall be deter- 
mined by the following calculations: 
Ol SACT - CPTO= RG/T where 
SACT is the state average 
cost per ton for disposal in a 
lined MSWLF r$30.4n; 
CPTO is the cost per ton to 
operate the MSWLF unit, and 
RG/T is the revenue to be 



1057 



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11:13 



PROPOSED RULES 



) 



OD 



am 



OYl 



generated per ton for funding 
the proposed design. 
RG/T X T/DD = RG/D 
where RG/T is revenue gen- 
erated per ton; T/DD is tons 
per day disposed at the 
MSWLF unit, and RG/D is 
revenue generated per day. 
CPD ; CI 627 = RN where 
CPD is the cost of the pro- 
posed design: C1627 is the 
cost of the design under 
■ 1627(c)(n. and RN is reve- 
nue needed. 
RN 



£B1 



RG/D = D98 where 

RN is revenue needed: RG/D 
is revenue generated per day 
and D98 is the days past Jan- 
uary 1, 1998. 
If an amended transition plan is approved 
but revenues that are projected to be gener- 
ated within five years of January \^ 1998 
do not offset the costs of the proposed 
design, a municipal solid waste landfill unit 
shall stop receiving municipal solid waste 
on or before January \^ 1998, and install a 
cap system that, at a minimum, meets the 
requirements of Subparagraph (c)(n of this 
Rule, unless the permittee agrees to fund 
the remaining costs of the proposed design 
of the amended transition plan. 
The cap system designed under Subpart 
(c)(10)(A)(i) of this Paragraph shall cover 
all areas of contiguous waste of the existing 
MSWLF unit, and contiguous areas where 
waste was placed prior to October 9_^ 1991. 
An amended transition plan submitted 
under this Section shall be subject to the 
permitting and public information proce- 
dures of Rule .1603(c) of this Section. 
fB)The Division shall schedule closure of 
the existing MSWLF unit based on its 
review of the applioation — oubmitt e d in 
accordance with Paragraph (d) of Rule 
.1617 and roviowod — in accordanco — with 
Subparagraph (d) of Rul e .1603. amended 
transition plan and in accordance with Part 
(c)(10)(A) of this Paragraph. 
Final contours for the cxiating MSWLF 
unit ohall b e consist e nt with th e capacity 
r e quir e m e nt!] n e o e ooar>' to clos e th e unit m 
accordanco with the requirements of this 
Subparagraph. 
(d) Post-closure criteria. 
(1) Following closure of each MSWLF unit, the 
owner or operator shall conduct p)ost-closure care. 
Post-closure care shall be conducted for 30 years. 



£C1 



£m 



mi 



(€)- 



(2) 



(3) 



except as provided under Subparagraph (2) of this 
Paragraph, and consist of at least the following: 

(A) Maintaining the integrity and effectiveness 
of any cap system, including making re- 
pairs to the cover as necessary to correct 
the effects of settlement, subsidence, ero- 
sion, or other events, and preventing 
run-on and run-off from eroding or other- 
wise damaging the cap system; 

(B) Maintaining and operating the leachate 
collection system in accordance with the 
requirements in Rules .1624 and . 1626. 
. 1626 of this Section. The Division may 
allow the owner or operator to stop manag- 
ing leachate if the owner or operator dem- 
onstrates that leachate no longer poses a 
threat to human health and the environ- 
ment; 

(C) Monitoring the ground water and surface 
water in accordance with the requirements 
of Rules .1631 through .1637 of this Sec- 
tion and maintaining the ground-water 
monitoring system, if appUcable; and moni- 
toring the surface water in accordance with 
the requirements of Rule .0602; .0602 of 
this Section; and 

(D) Maintaining and operating the gas monitor- 
ing system in accordance with the require- 
ments of Rule . 1626 of this Section. 

The length of the post-closure care period may be: 

(A) Decreased by the Division if the owner or 
operator demonstrates that the reduced 
period is sufficient to protect human health 
and the envirormient and this demonstration 
is approved by the Division; or 

(B) Increased by the Division if the Division 
determines that the lengthened period is 
necessary to protect human health and the 
environment. 

Following completion of the post-closure care 
period for each MSWLF unit, the owner or 
operator shall notify the Division that a certifica- 
tion, signed by a registered professional engineer, 
verifying that post-closure care has been com- 
pleted in accordance with the post-closure plan, 
has been placed in the operating record. 



Authority G.S. 130A-294. 



TITLE 26 - OFFICE OF ADMINISTRATIVE 
HEARINGS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Office of Administrative Hearings 
intends to adopt rules cited as 26 NCAC 2C .0111, .0307, 
amend rules .0102-. 0103, .0401, and .0502. Notice of 



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October 1, 1996 



1058 



PROPOSED RULES 



Rule-making Proceedings was published in the Register on 
August 1. 1996. 

Proposed Effective Date: April 1. 1997 

A Public Hearing will be conducted at 10:00 a.m. on 
November 1. 1996 at the Lee House, Hearing Room ffl , 422 
North Blount Street, Raleigh, NC. 

Reason for Proposed Action: To correct inconsistencies 
with the rules and to make technical corrections identified 
after the April 1, 1996 effective date. To adopt a rule that 
sets out the criteria to waive a publication submission 
requirement contained in an OAH rule. To adopt a rule that 
establishes standards and a fee for agencies who request 
publication of discretionary notices in the Register under 
G.S. 150B-21. 17(a)(6). To adopt a definition to interpret a 
"recent act " and "recent change " cis- tlwse terms are in G. S. 
150B-21. 1(a)(2) and (a)(3) in the temporary rule rexie^v 
procedure under G.S. 150B-21.1. 

Comment Procedures: Comments and statements, both 
written and oral, may be presented at the hearing. Any 
other written comments may be directed to: Anna Baird, 
Rule-making Coordinator. Office of Admifiistrative Hearings, 
PO Drawer 27447, Raleigh, NC 27611-7447. Comments 
must be received by 5:00 p. m. on November 1 , 1996. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 2 - RULES DIVISION 

SUBCHAPTER 2C - SUBMISSION PROCEDURES 

FOR RULES AND OTHER DOCUMENTS TO BE 

PUBLISHED IN THE NORTH CAROLINA 

REGISTER AND THE NORTH CAROLINA 

ADMINISTRATIVE CODE 

SECTION .0100 - GENERAL 

.0102 DEFINITIONS 

The following definitions shall apply throughout this 
Chapter and to all forms prescribed pursuant to this Chapter 
unless the context indicates otherwise: 

"Action" means the adoption, amendment, or 

repeal of a rule. 

"Adoption" means a new rule with a new rule 

number. 

"Adoption by agency" means the date that an 

agency takes final action on a rule. 

"Amendment" means an existing rule with a 

deletion, addition or other change to that existing 

rule. 
(5) "Citation" means a reference to a rule by Title, 



(1) 
(2) 
(3) 
(4) 



Chapter or Subchapter, and Section or Rule 
number. 

(6) "Code" means the North Carolina Administrative 
Code. 

(7) "Commission" means the Rules Review Commis- 
sion. 

(8) "Form" means an original form provided by 
OAH; a computer generated form from a diskette 
provided by OAH; a clear legible photocopy of an 
original OAH form; or an agency generated form 
identical to the OAH form. 

(9) "OAH" means the Codifier of Rules at the Office 
of Administrative Hearings. 

(10) "Original" means a printed copy of the document, 
not a photocopy. 

(11) "Recent Act" or "Recent change" as used in G.S. 
150B-21. 1(a)(2) and (a)(3) means an act or 
change that was effective no more than 180 days 
before the submission date of the temporary rule 
to OAH. 

(12) (4+) "Register" means the North Carolina Regis- 
ter. 

(13) f44) "Repeal" means the deletion of the entire text 
of a rule. When a rule is repealed, that rule 
number shall not be used again. The number, 
rule name, and final history note shall remain in 
the Code permanently for publication and refer- 
ence purposes. 

Authority G.S. 150B-21.17: 150B-21.18. 

.0103 ORIGINAL AND DUPLICATE COPY 

(a) The agency shall submit an original and one copy of 
any document and form for publication in the Register or 
Code. 

(b) The agency shall include an additional copy of the 
rule and a copy of the fiscal note and attachments with any 
permanent rule that is submitted to the Commission. 

(c) The original and form shall each be permanently 
marked as the original. 

Note: Rules Review Commission requests that documents 
be submitted in the following order: 
(1) the original submission form; 

the copy or copies of the submission form; 

the original of the rule; 

the copy, highlighted if required by Rule .0405 of 

this Subchapter; 

the agency return copy of the rule, if any; 

the copy of the fiscal note and attachments; 

f&) the remaining copy for RRC. 



(2) 
(3) 
(4) 

(5) 
16) 

m 



Authority G.S. 150B-21.17; 150B-21.18: 150B-21.19. 

.0111 WAIVER 

OAH may waive any rule in this Subchapter that is not 
statutorily required if an agency submits a written request. 
Factors OAH shall use in determining whether to grant the 



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PROPOSED RULES 



waiver are: 

(1) degree of disruption to OAH publication and work 
schedule; 

(2) cost to OAH; 

(3) degree of benefit to the public; 

(4) whether the agency had control over the circum- 
stances that required the requested waiver; 

(5) notice to and opposition by the public; 

(6) need for the waiver; and 

(7) previous requests for waivers submitted from the 
agency. 



(b) the body of the rule (Rule .0405 of this 
Subchapter); 

(c) the history note (Rule .0406 of this Sub- 
chapter). 

(3) A return copy, if desired (Rule .0104 of this 
Subchapter). 

(4) An original Notice of Text or Notice of Text and 
Hearing form and copy if publication in the 
Register shall serve as Notice of Text. 

Authority G.S. 150B-21.19. 



Authority G.S. 150B-21.19. 

SECTION .0300 - THE NORTH CAROLINA 
REGISTER 

.0307 OTHER NOTICES FOR PUBLICATION 

(a) OAH may publish any document or notice that is not 
statutorily required if an agency submits a written request. 
Factors OAH shall use in determining whether to grant the 
request are: 

(1) degree of disruption to OAH publication and work 
schedule; and 

(2) degree of benefit to the public. 

(b) OAH shall invoice the agency for the publication cost 
of thirty dollars ($30.00) per published page. 

Authority G.S. 1508-21.17(6); 150B-19(5)(a): 1508-21.25. 

SECTION .0400 - NORTH CAROLINA 
ADMINISTRATIVE CODE 

.0401 SCOPE 

(a) The rules in this Section set forth the requirements 
for submitting rules for inclusion in the Code. The agency 
shall also comply with the requirements in Sections .0100 - 
.0200 of this Subchapter. 

(b) These Rules a pply to agencies subject to G.S. I SOB 
as well as those agencies subject to G.S. 150B-21.2Ua) and 

Authority G.S. 1508-21.17; 1508-21.18; 1508-21.19. 
SECTION .0500 - TEMPORARY RULES 

.0502 PUBLICATION OF A TEMPORARY RULE 

The agency shall submit a temporary rule for review by 
OAH and publication in the Code with the following: 

(1) An original Temporary Rule Certification form 
and copy (Rule .0503 of this Section). 

(2) An original and copies of the temporary rule 
(Rule .0103 of this Subchapter) prepared in 
accordance with Rule .0108 of this Subchapter, 
containing: 

(a) an introductory statement (Rule .0404 of 
this Subchapter); 



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October 1, 1996 



1060 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant 
to G.S. 150B-21.1(e), publication of a temporary rule in the North Carolina Register serves as a notice of rule-making 
proceedings unless this notice has been pre\'iously published by the agency. 



TITLE 10 



DEPARTMENT OF HUMAN 
RESOURCES 



Rule-making Agency: DHR - Division of Medical Assis- 
tance 

Rule Citation: 10 NCAC 26H .0602 

Effective Date: October 4, 1996 

Notice of Rule-making Proceedings was published in the 
Register on August 1, 1996. 

Findings Reviewed and approved by Beecher R. Gray 

Authority for the rule-making: G.S. 108A-25(b): 108A- 
54; lOSA-55: S.L. 1985, c. 479. s. 86; 42 C.F.R. 440.70 

Reason for Proposed Action: This action is based on a 
home health study conducted by the Division of Medical 
Assistance and results in the home health prospective rates 
being more nearly aligned to average industry cost. The 
proposed change will result in annual savings of approxi- 
mately 1. 7 million dollars to the Medicaid program. 

A Public Hearing will be conducted at 1:30 p.m. on 
October 31, 1996 at the Division of Medical Assistance, 
1985 Umstead Dr. - Kirby Bldg. - Room 132, Raleigh, NC 
27603. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted by October 31, 1996 
to Portia Rochelle, APA Coordinator, Division of Medical 
Assistance, 1985 Umstead Drive . Raleigh, NC 27603. 

Fiscal Note: This Rule qffeas the expenditures or revenues 
of local government funds. This Rule affects the expenditure 
or distribution of State funds subject to the Executive Budget 
Act, Article 1 of Chapter 143. This Rule does not have a 
substantial economic impact of at least five million dollars 
($5,000,000) in a 12-month period. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT PLANS 

SECTION .0600 - HOME HEALTH PROSPECTIVE 
REIMBURSEMENT 

.0602 REIMBURSEMENT METHODS 

(a) A maximum rate per visit is established annually for 



each of the following services: 

(1) Registered or Licensed Practical Nursing Visit; 

(2) Physical Therapy Visit; 

(3) Speech Therapy Visit; 

(4) Occupational Tlierapy Visit; 

(5) Home Health Aide Visit. 

(b) The maximum rates for the services identified in 
Sootion Paragraph (a) above of this Rule are computed and 
applied as follows: 

(1) Payment of claims for visits is based on the lower 
of the billed customary charges or the maximum 
rate of the particular service. Governmental 
providers with nominal charges may bill at cost. 
For this purpose, a charge that is less than 50 
percent of cost is considered a nominal charge. 
For such governmental providers, the payment 
amount is equal to the lower of the cost as billed 
or the applicable maximum rate. 

(2) Tho maximum mt e s are d e riv e d from a base yoar 
s e l e ct e d by th e stat e . — Th e bas e y e ar maximum 
rates aro set at 90 percent of the median chargo 
per visit for each scr - ioo. Maximum per visit 
rates effective July \^ 1996, for Registered or 
Licensed Practical Nursing, Physical Therapy, 
Speech Therapy, Occupational Therapy and Home 
Health Aide shall be equal to the rates in effect on 
July 1, 1995. 

(3) To compute the annual maximum rat e s, th e bas e 
year median rate s per vi s it are adju s ted as do 
scribed in Sections ( 4 ), (5) and (6). rates effective 
each July \ subsequent to July j_^ 1996, the 
maximum rates per visit are adjusted as described 
in Subparagraphs (4), (5), and (6) of this Para- 
graphs 

(4) Bas e Each year maximum rates are adjusted by an 
annual cost index factor. The cost mdex has a 
labor component with a relative weight of 75 
piercent and a non-labor component with a relative 
weight of 25 percent. The relative weights are 
derived from the Medicare Home Health Agency 
Input Price Index and — adopted — by — referonoo 
pursuant to N.C.G.S. 150B l ' Ha)(2)(e) as spcoi 
fted — m — 15QB 21.6. published in the Federal 
Register dated May 30. 1986. Labor cost 
changes are measured by the annual percentage 
change in the average hourly earnings of North 
Carolina service wages per worker. Non-labor 
cost changes are measured by the annual percent- 
age change in the GNP Implicit Price Deflator. 

(5) The annual cost index equals the sum of the 
products of multiplying the forecasted labor cost 
percentage change by 75 percent and multiplying 



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TEMPORARY RULES 



the forecasted non-labor cost percentage change 
by 25 percent. The baso )'ear July l^ 1996 
effective rates are multiplied by the cost index 
factor for each year subsequent from the baso 
year ug to the year in which the rates apply. 
(6) Other adjustments may be necessary for home 
health services to comply with federal or state 
laws or rules. 

(c) Medical supplies except those related to provision and 
use of Durable Medical Equipment are reimbursed at the 
lower of a provider's billed customary charges or a maxi- 
mum amount determined for each supply item. Fees will be 
established based on average, reasonable charges if a 
Medicare allowable amount cannot be obtained for a 
particular supply item. Estimates of reasonable cost will be 
used if a Medicare allowable amount cannot be obtained for 
a particular supply or equipment item. The Medicare 
allowable amounts will be those amounts available to the 
Division of Medical Assistance as of July 1 of each year. 

(d) These changes to the Payment for Services Prospec- 
tive Reimbursement Plan for Home Health Agencies will 
become effective when the Health Care Financing Adminis- 
tration, US Department Health and Human Services. 
approves amendment submitted to HCFA by the Director of 
the Division of Medical Assistance on or about July J^ 1996 
as >yMA96-03 wherein the Director proposes amendments of 
the State Plan to amend Payment for Services ; Prospective 
Reimbursement Plan for Home Health Agencies. 

History Note: Authority G.S. 108A-25(b): 108A-54: 108A- 

55: S.L. 1985, C.479, s. 86; 42 C.F.R. 440. 70; 

Ejf. October 1, 1987, 

Amended Ejf. October 1, 1992; May 1, 1990; 

Temporary Amendment Ejf. October 4, 1996. 



TITLE 25 - OFFICE OF STATE PERSONNEL 

Rule-making Agency: State Personnel Commission 

Rule Citation: 25 NCAC ID .2501, .2503 - .2505. .2507 
- .2509, .2511, .2513, .2514, .2516 

Effective Date: September 1 , 1996 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. 126-4. 126-7, S.L. 
1995. c. 507, s. 7. 14 

Reason for Proposed Action: These rules are proposed to 
be adopted and amended in order to provide clarification to 
the state agencies in administering the legislative salary 
increases enacted by the General Assembly in HB 53 in the 
1995 Session. 

Comment Procedures: Written or oral comments may be 



submitted to: Ms. Patsy Smith Morgan, 116 West Jones 
Street, Raleigh, NC 27603. (919) 733-7112 within 60 days 
after the date of this publication in the Register. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER ID - COMPENSATION 

SECTION .2500 - COMPREHENSIVE 
COMPENSATION SYSTEM 

.2501 CAREER GROWTH RECOGNITION 
AWARD 

Career Growth Recognition Award is an annual salary 
increase awarded to an employee whose final overall 
summary rating is at or above level three of the rating scale 
and who does not have an unresolved final written warning 
disciplinap ' procedure, that involvoo poroonal conduct. This 
is the primary method by which an employee progresses 
through the salary range. In the event that an employee 
does not receive a cost-of-living increase, the salary may 
fall below the minimum of the salary range. This factor 
alone shall not be justification for any type of salary 
adjustment. 

History Note: Authority G.S. 126-7; 

Eff. June 1, 1994; 

Temporary Amendment Ejf. September 1 , 1996 

.2503 EMPLOYEES ELIGIBLE FOR CAREER 
GROWTH RECOGNITION AWARD 

(a) An employee having a permanent or time- limited 
full-time or part-time (half-time or more) appointment 
whose salary is below the maximum of the range and whose 
overall summary rating is at or above level three after 
completing a work cycle based on a work plan shall receive 
a career growth recognition award unless the employee has 
an unresolved final writt e n warning disciplinary procedure 
that involv eo personal conduct. For an employee who 
otherwise qualifies for a career growth recognition award, 
a final written warning is the only justification for not 
granting this increase. 

(b) An employee who has been denied the career growth 
recognition award because of an unresolved final written 
warning disciplinary procedure, shall receive the award on 
a current basis at the time that final written warning disci- 
plinary procedure is resolved. (See 25 NCAC ID .2514 of 
this Section) For purpose of calculating the career growth 
recognition award, only the most recently awarded increase 
shall be utilized (i.e., the last increase that was funded). 

(c) An employee having a probationary or trainee 
appointment on the date increases are effective is not 
eligible for a career growth recognition award. Tliese 
employees become eligible when increases are effective for 
the next cycle after: 

(1) receiving a permanent appointment, 

(2) completing a work cycle, and 



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1062 



TEMPORARY RULES 



(3) receiving a summary rating that is at or above 
level three. 

(d) An employee who is on leave without pay on the date 
career growth recognition awards are granted shall receive 
the increase on the date of reinstatement if the work cycle 
has been completed and a summary rating given. If the 
work cycle and summary rating have not been completed, 
the employee shall receive the career growth recognition 
award at the time when both are completed. 

(e) An employee who separates from State service prior 
to the effective date career growth increases are effective is 
not eligible for the increase. 

History Note: Authority G.S. 126-7: 

Ejf. June 1, 1994; 

Temporary Amendment Ejf. September 1 , 1996. 

.2504 EFFECTIVE DATE OF CAREER GROWTH 
RECOGNITION AWARD 

Career growth recognition awards shall be effective on the 
first day of July unless otherwise specified by the General 
Assembly or because they are delayed due to leave without 
pay or an unresolved final written warning disciplinary 
procedure . 

History Note: Authority G.S. 126-7; 

Ejf. June 1, 1994; 

Temporary Amendment Ejf. September 1, 1996. 

.2505 COST-OF-LIVEVG ADJUSTMENT 

Cost-of-Living Adjustment is a general salary increase in 
response to inflation and labor market factors awarded to an 
employee whose final overall summary rating is at or above 
level two of the rating scale, and who does not have an 
unresolved final writt e n warning, disciplinary procedure. 



History Note: Authority G.S. 126-7; 

Ejf. June 1, 1994; 

Temporary Amendment Ejf. September 1, 



.2507 



1996. 



EMPLOYEES ELIGIBLE FOR COST-OF- 
LIVING ADJUSTMENT 

(a) An employee having a permanent, time-limited 
probationary, or trainee full-time or part-time (half timo or 
more) appointment whose overall summary rating is at or 
above level two, or a rating based on Paragraph (h) of this 
Rule that is not unsatisfactory, except employees who have 
an unresolved final written warning disciplinary procedure 
involving personal conduct on the date that increases are 
given is eligible for a cost-of-living increase. Tliis applies 
to all employees regardless of where their salary is in the 
salary range, including those above the maximum. 

(b) For the purpose of granting the cost-of-living adjust- 
ment to employees who have not completed a full perfor- 
mance management cycle and received an overall summary 
rating, the following shall apply: 

(1) Prior to July 1 , oach Each employee's perfor- 



mance shall be reviewed. 

(2) If the review indicates unsatisfactory performance, 
the employee shall not receive the cost-of-living 
adjustment until the performance level is above 
the unsatisfactory level. The actual results of the 
review shall be documented with the employee. 

(3) If the review indicates that the performance is 
above unsatisfactory, the employee shall be 
granted the cost-of-living adjustment. 

(4) If the supervisor feels that the employee has not 
worked long enough for a determination of per- 
formance level to be made, a review shall be 
made each month for the purpose of determining 
whether the performance is above unsatisfactory 
and the cost-of-living adjustment should be 
granted. 

(5) If the cost-of-living adjustment has not been 
granted during the probationary period, it shall be 
granted at the time the employee is given a per- 
manent appointment since the employee's perfor- 
mance must be satisfactory to move from a 
probationary to a permanent appointment. 

(c) An employee who has been denied the cost-of-living 
adjustment because of an unresolved final written warning 
disciplinary procedure involving personal conduct shall 
receive the adjustment on a current basis when that final 
written warning disciplinary procedure is resolved. (See 25 
NCAC ID .2514 of this Section) 

(d) An employee who is on leave without pay on the date 
a cost-of-living adjustment is effective shall receive the 
increase on the date of reinstatement if the employee's 
performance has been determined to be above the unsatisfac- 
tory level, or at such time as the employee's performance is 
determined to be above the unsatisfactory level. 

History Note: Authority G.S. 126-7; 

Ejf. June 1, 1994; 

Temporary Amendment Ejf. September 1 , 1996. 

.2508 EFFECTIVE DATE OF COST-OF- 
LIVING ADJUSTMENT 

Cost-of-living adjustments shall be effective on the first 
day of July unless otherwise specified by the General 
Assembly or because they have been delayed due to leave 
without pay or an unresolved final written warning, disci- 
plinary procedure. 

History Note: Authority G.S. 126-7; 

Eff. June 1, 1994; 

Temporary Amendment Eff. September 1 , 1996. 

.2509 PERFORMANCE BONUS 

Performance Bonus is a lump sum award to an employee 
whose final overall summary rating is at or above level four 
of the rating scale and who does not have an unresolved 
final written warning, disciplinary procedure. 



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TEMPORARY RULES 



History Note: Authority G.S. 126-7; 

Eff. June I, 1994; 

Temporary Amendment Eff. September 1, 1996. 

.2511 EMPLOYEES ELIGIBLE FOR PERFORMANCE BONUS 

(a) An employee having a permanent or time-limited full-time or part-time (half-time or more) appointment whose overall 
summary rating is at or above level four after completing a work cycle based on a work plan shall be eligible to receive a 
performance bonus unless the employee has an unresolved final written warning that involvoa porsonal conduct, disciplinary 
procedure. 

(b) An employee who has been denied a performance bonus because of an unresolved final writt e n warning disciplinary 
procedure involving fx>rsonal conduct shall not be eligible for a performance bonus during the current cycle. The employee 
will be eligible for a bonus in the next cycle based on the porformonco evaluation overall summary rating. 

(c) An employee having a probationary or trainee appointment on the date bonuses are effective is not eligible for a 
performance bonus. These employees become eligible when increases are effective for the next cycle after: 

(1) receiving a permanent appointment, 

(2) completing a work cycle, and 

(3) receiving a summary rating at or above level four. 

(d) An employee who is on leave without pay on the date performance bonuses are effective shall receive the bonus 
effective on the date of reinstatement if the work cycle has been completed and an overall summaiy rating given. If the work 
cycle and overall summary rating have not been completed, the employee shall receive the bonus at the time when both have 
been completed. 

(e) An employee whose salary is at the maximum of the salary range is eligible for a performance bonus. 

(f) An employee whose salary is above the maximum of the salary range is eligible for a performance bonus only to the 
extent that the base salary paid the employee plus the performance bonus allocated according to the employee's performance 
rating does not exceed the maximum salary paid on the adopted pay schedule for the applicable pay grade plus the allocated 
performance bonus calculated on the maximum salary on the pay schedule. This performance bonus shall be calculated as 
follows: 



Line 


Item 


Calculation 


1 


Maximum of salary range 




-1 


% bonus due according to performance rating 




3 


Dollar amount of performance bonus [Line 1 x Line 2] 




4 


Maximum annual salary allowed [Line 1 -1- Line 3] 




5 


Salary of employee paid above maximum of range 




6 


Maximum performance bonus for employee paid above the range [Line 
4 - Line 5] 




If Line 5 is greater than Line 4, the employee cannot receive a bonus. 



(g) An employee who separates from State service prior to the effective date performance bonuses are effective is not 
eligible to receive the increase. 

History Note: Authority G.S. 126-7; 
Eff. June 1. 1994; 
Temporary Amendment Eff. September 1, 1996. 



.2513 BASES FOR AWARDING INCREASES 

(a) Each agency shall have an operative Performance 
Management System which has been approved by the Office 
of State Persormel using the North Carolina Performance 
Rating Scale. The complete requirements for an operative 
performance management system are defined in 25 NCAC 
10 - Performance Management System. 



(b) Eligibility for increases will be based on the most 
recent work cycle completed and overall summary rating 
received during the previous 12-month period. 

(c) The performance management system of each agency 
shall ensure that salary increases are distributed fairly, 
consistent with internal equity and with the Performance 
Management System. The State Personnel Director shall 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1064 



TEMPORARY RULES 



rescind any career growth recognition award or performance 
bonus that does not meet the intent of the provisions of the 
performance management rules and require the originating 
agency to reconsider or justify the increase. An increase or 
bonus does not meet the intent of the provisions of the 
performance management rules in the event that increases or 
bonuses are distributed: 

(1) in an arbitrary or capricious maimer; 

(2) in a manner that violates laws prohibiting discrim- 
ination; or 

(3) to managers or superv'isors whose failure to 
comply with the performance management rules 
resulted in the loss of an increase or a bonus by 
employees under their supervision. 

(d) No agency shall set limits so as to preclude an 
eligible employee from receiving a career growth recogni- 
tion award, cost-of-living adjustment, or performance bonus: 
or to initiate written disciplinary procedures for the purpose 
of precluding an eligible employee from receiving a cost-of- 
living adjustment. 

(e) When a work cycle has been completed but an overall 
summary rating has not been given, the State Personnel 
Director has the authority to order the agency to give an 
accurate rating. If the agency fails to give a rating, the 
employee shall be given a rating of no less than level 3^ 
Once a rating is given for work performed during a cycle 
for which the General Assembly has allocated funds for an 
increase under the Comprehensive Compensation System, 
the employee shall, if allowed by law and the Administrative 
Code, be ehgible for the increase retroactive to the date that 
other increases were awarded. 

(D Final Disciplinary Procedure Defined: For purposes 
of eligibility for salary increases, an employee in final 
disciplinary procedure is an e mployee whose personnel file 
includes: 

(1) two active disciplinary actions of any type; or 

(2) a suspension without pay or demotion. 

History Note: Filed as a Temporary Amendment Ejf. July 

1, 1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 126-4; 126-7; 

Ejf. June 1, 1994; 

Temporary Amendment Expired; 

Temporary Amendment Eff. September 1, 1996. 

.2514 FINAL DISCIPLINARY PROCEDURE 

For purpose of this Section only, a final written warning 
disciplinary procedure is deemed to be resolved: in the 
ev e nt: resolved: 

(1) when it becomes inactive in accordance with 25 
NCAC IJ .0614(g); 

(2) when an authorized manager or supervisor places 
a written statement in the personnel file of an 
affected employee indicating that the issue ad- 
dressed in the final written disciplinary procedure, 
while not inactive, is sufficiently resolved to 



warrant the granting of the appropriate salary 
increase; or 
(3) when the presence of the same final written 
disciplinary procedure in the personnel file was 
utilized as a basis to deny a salary increase in a 
previous performance management cycle. 

f4-) that th e p e roonal conduct issu e is r e soh' e d and th e 

warning is removed from the employee's person 
nol file, or 

(3) that th e porconnol file of th e e mploy ee contains a 

writt e n stat e m e nt from an authoriz e d manager or 
3upor . 'i3or indicating that, after review of the 
personal conduct issue, circumstonoos warrant tho 
granting of the care e r growth award, or 

{^ that th e final written warning disoiplinaP i ' proco 

dure is not resolved in a manner set forth in 
Subparagraph (a)(1) or (a)(2) of this Rule, and; 

(A) mor e than 18 months hav e pass e d o ino o th o 

dat e of th e final writt e n warning disoiplin 
ary procedure or a letter extending tho 
effect of the warning, and; 

{&) the ag e ncy has not t e ndered notic e to th e 

e mploy ee of th e e xt e nsion of th e final 

written warning for tho purpose of this 

Section. — (The notice of extension may be 

t e nd e r e d at any tim e prior to 18 months 

form th e dat e of the final writt e n warning 

or prior to the expiration of 18 months 

from the date of the prior extension.) 

(Tj) In th e e v e nt that n e ith e r Subparagraph (a)(1), (a)(2). 

nor (a)(3) of this Rul e ar e applicabl e to th e final writt e n 

warning, then the final written warning shall be deemed on 

active final written warning or an unresolved final written 

warning. 

(o) This Rule and the granting of increa s es hav o no e ff e ct 
on the sue of the final written for any other purpose. 

History Note: Authority G.S. 126-7; 

Ejf. June 1, 1994; 

Temporary Amendment Eff. September 1 , 1996. 

.2516 ELIGIBILITY FOR SEPTEMBER 1, 1996 
LEGISLATIVE SALARY INCREASES 

For purposes of administering the legislative salary 
increase provisions, effective September \^ 1996, Rules 25 
NCAC 1D.2501-.2508 and .2513-. 2515 shall apply to the 
extent there is not a conflict with the following procedures. 
If there is a conflict, the following procedures shall apply: 
( 1) A career growth recognition award shall be 
granted as follows: 

(a) Employees whose salaries are at the maxi- 
mum shall receive a 1%_ one-time career 
growth bonus. 
£b} Employees whose salaries are less than 2% 
from the maximum shall receive a partial 
increase added to base pay in an amount 
that it takes to get to the maximum. These 



1065 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



TEMPORARY RULES 



employees shall also receive a one-time 
career growth bonus in an amount that 
would equal 2% of the base pay minus the 
amount of the career growth award giyen. 
(c) Employees whose salaries are above the 
maximum shall receive a 2% one-time 
career growth bonus based on the maxi- 
mum of the salary range in effect on Au- 
gust 31. 1996. 

(2) The following em ployees shall receive the cost-of- 
living increase in accordance with Rule 
.2507rb)(l)-(5) of this Section: 

(a) Employees with a probationary appoint- 
ment, 

(b) Employees who have not completed a work 
cycle, and 

(c) Employees who do not have a performance 
rating because they were hired after the last 
performance management cycle was com- 
pleted. 

(3) After receiving a permanent appointment, employ- 
ees described in Subitems (2)(1)) and (2)(c) of this 
Rule shall also be eligible to receive a career 
growth recognition award as provided below in 
this Item. Each agency shall assure that all 
employees are reviewed/evaluated by the same 
method. 

(a) Each employee shall be given an interim 
review at the mid-pomt of the employee's 
Performance Management Cycle. If their 
total time of employment is at least equiva- 
lent to the agency's minimum Performance 
Management Cycle requirement, the em- 
ployee shall be granted a career growth 
recognition award at that point, jf their 
performance is deemed to be at level 3 or 
above; or. k shall be granted at the time 
the employee completes the total time of 
employment requirement; or 

(b) Each employee shall be evaluated and given 
a summary rating after completing time in 
the new cycle that is at least equivalent to 
the agency's minimum Performance Man- 
agement Cycle requirement. If the overall 
summary rating is at level 3 or above, the 
employee shall be granted a career growth 
recognition award. In any event, all these 
employees, employed pnor to September l^ 

1996. shall be evaluated for the career 
growth recognition award by May 3 1 . 

1997. and shall receive the career growth 
recognition award if their rating js at level 
3 or above and they are not in final disci- 
plinary procedure. 

(4) Employees with trainee appointments are eligible 
for the cost-of-living adjustment if they are not in 
final disciplinary procedure. Employees with 



trainee appointments may be eligible for career 
growth recognition awards under the following 
circumstances: 

(a) Employees who are scheduled for trainee 
adjustments are not eligible for the career 
growth recognition award. They become 
eligible if they are qualified and are rated 
for placement into the regular class during 
this fiscal year, provided their total time of 
employment is at least equivalent to the 
agency's minimum P erformance Manage- 
ment Cycle requirement. If this recjuire- 
ment has not been met, the increase shall 
be delayed until n has been met. 

(b) Employees with trainee appointments who 
are not scheduled for trainee salary adjust- 
ments during this fiscal year shall be eligi- 
ble for the career growth award the same 
as employees who are in regular classes. 

(c) In any event, all employees shall be evalu- 
ated for the career growth recognition 
award by May 31. 1997. unless they are in 
a trainee class that extends beyond this 
date. 

History Mote. Authority S.L. 1995. c. 507, s. 7.14; G.S. 

126-4: 

Temporary Adoption Eff. September 1 , 1996. 



11.13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1066 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. October 17. 1996 
at 10:00 a.m. Anyone wishing to submit written comment on any rule before the Commission should submit those 
comments to the RRC staff, the agency, and the individual Commissioners by Monday. October 14. 1996. at 5:00 p.m. 
Specific instructions and addresses may be obtained from the Rules Review Commission at 919-733-2721. Anyone wishing 
to address the Commission should notify the RRC staff and the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Vemice B. Howard 

Teresa L. Smallwood 

Charles H. Henry 

Philip O. Redwine - Vice Chairman 



Appointed by House 

Bill Graham 
Paul Powell 
Anita White 



RULES REVIEW COMMISSION MEETING DATES 



October 17, 1996 
November 21, 1996 



December 19. 1996 



MEETING DATE: OCTOBER 17, 1996 



LOG OF FILINGS 
RULES SUBMITTED: AUGUST 20, 1996 THROUGH SEPTEMBER 20, 1996 



AGENCY/DIVISION 



RULE NAME 



RULE 



ACTION 



DHR/DIVISION OF FACILITY SERVICES 








Name and Address 


10 NCAC 3R 


.0109 


Repeal 


Definitions 


10 NCAC 3R 


.0110 


Amend 


Location of Agency 


10 NCAC 3R 


.0111 


Adopt 


Health Maintenance 


10 NCAC 3R 


.0213 


Amend 


Replacement Equipment 


10 NCAC 3R 


.0214 


Amend 


Psychiatric Bed Converstion 


10 NCAC 3R 


.0215 


Adopt 


Letter of Intent 


10 NCAC 3R 


.0303 


Amend 


Determination of Review 


10 NCAC 3R 


.0304 


Amend 


Filing Applications 


10 NCAC 3R 


.0305 


Amend 


Withdrawal of Certificate 


10 NCAC 3R 


.0317 


Amend 


Assessment of Civil Penalty 


10 NCAC 3R 


.0904 


Adopt 


State Medical Facilities 


10 NCAC 3R 


.1003 


Repeal 


Definitions 


10 NCAC 3R 


.1113 


Repeal 


Capacity in the Facility 


10 NCAC 3R 


.1115 


Repeal 


Scope of Services 


10 NCAC 3R 


.1116 


Repeal 


Projected Utilization 


10 NCAC 3R 


.1117 


Repeal 


Projected Patient Origin 


10 NCAC 3R 


.1118 


Repeal 


Site: Building 


10 NCAC 3R 


.1119 


Repeal 


Staffing 


10 NCAC 3R 


.1120 


Repeal 


Accessibility of Services 


10 NCAC 3R 


.1124 


Repeal 


Information Required 


10 NCAC 3R 


.1125 


Adopt 


Required Performance 


10 NCAC 3R 


.1126 


Adopt 


Required Staffing 


10 NCAC 3R 


.1127 


Adopt 


Information Required 


10 NCAC 3R 


.1214 


Amend 


Required Support 


10 NCAC 3R 


.1216 


Amend 


Accessibility 


10 NCAC 3R 


.1218 


Repeal 



1067 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



RULES REVIEW COMMISSION 



Data Reporting 


10 NCAC 3R 


.1219 


Repeal 


Definitions 


10 NCAC 3R 


.1302 


Repeal 


Capacity in the Facility 


10 NCAC 3R 


.1304 


Repeal 


Scope of Services Offered 


10 NCAC 3R 


.1305 


Repeal 


Projected Utilization 


10 NCAC 3R 


.1306 


Repeal 


Projected Patient Origin 


10 NCAC 3R 


.1307 


Repeal 


Site and Equipment 


10 NCAC 3R 


.1308 


Repeal 


Staffing 


10 NCAC 3R 


.1309 


Repeal 


Definitions 


10 NCAC 3R 


.1413 


Amend 


Information Required 


10 NCAC 3R 


.1414 


Amend 


Data Reporting 


10 NCAC 3R 


.1418 


Repeal 


Accessibility 


10 NCAC 3R 


.1419 


Repeal 


Definitions 


10 NCAC 3R 


.1613 


Amend 


Information Required 


10 NCAC 3R 


.1614 


Amend 


Required Performance 


10 NCAC 3R 


.1615 


Amend 


Data Reporting 


10 NCAC 3R 


.1618 


Repeal 


Accessibility 


10 NCAC 3R 


.1619 


Repeal 


Definitions 


10 NCAC 3R 


.1713 


Amend 


Information Required 


10 NCAC 3R 


.1714 


Amend 


Data Reporting 


10 NCAC 3R 


,1719 


Repeal 


Accessibility 


10 NCAC 3R 


.1720 


Repeal 


Definitions 


10 NCAC 3R 


1912 


Amend 


Information Required 


10 NCAC 3R 


.1913 


Amend 


Required Performance 


10 NCAC 3R 


.1914 


Amend 


Required Staffing 


10 NCAC 3R 


1916 


Amend 


Accessibility 


10 NCAC 3R 


.1917 


Repeal 


Data Reporting 


10 NCAC 3R 


.1918 


Repeal 


Accessibility to Ser\'ices 


10 NCAC 3R 


.2117 


Repeal 


Data Reporting 


10 NCAC 3R 


.2120 


Repeal 


Data Reporting 


10 NCAC 3R 


.2319 


Repeal 


Accessibility 


10 NCAC 3R 


.2320 


Repeal 


Definitions 


10 NCAC 3R 


.2402 


Amend 


Capacity in the Facility 


10 NCAC 3R 


.2404 


Repeal 


Scope of Services 


10 NCAC 3R 


.2405 


Repeal 


Project Utilization 


10 NCAC 3R 


.2406 


Repeal 


Projected Resident Origin 


10 NCAC 3R 


.2407 


Repeal 


Site: Building 


10 NCAC 3R 


.2408 


Repeal 


Staffing 


10 NCAC 3R 


.2409 


Repeal 


Information Required 


10 NCAC 3R 


.2410 


Adopt 


Performance Standards 


10 NCAC 3R 


.2411 


Adopt 


Staff 


10 NCAC 3R 


.2412 


Adopt 


Definitions 


10 NCAC 3R 


.2502 


Amend 


Capacity in the Facility 


10 NCAC 3R 


.2503 


Repeal 


Capacity in the Ser\'ice Area 


10 NCAC 3R 


.2504 


Repeal 


Scope of Services 


10 NCAC 3R 


.2505 


Repeal 


Staffing 


10 NCAC 3R 


.2506 


Repeal 


Accessibility 


10 NCAC 3R 


.2507 


Repeal 


Capital 


10 NCAC 3R 


.2508 


Repeal 


Quality of Services 


10 NCAC 3R 


.2509 


Repeal 


Quality of Services 


10 NCAC 3R 


.2510 


Adopt 


Performance Standards 


10 NCAC 3R 


.2511 


Adopt 


Staffing 


10 NCAC 3R 


.2512 


Adopt 


Capacity in the Facility 


10 NCAC 3R 


.2603 


Repeal 


Scope of Services 


10 NCAC 3R 


.2605 


Repeal 


Accessibility 


10 NCAC 3R 


.2607 


Repeal 


Relationship 


10 NCAC 3R 


.2608 


Repeal 


Capital 


10 NCAC 3R 


.2609 


Repeal 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1068 



RULES REVIEW COMMISSION 



Quality of Services 
Information Required 
Performance Standards 
Accessibility 
Data Reporting 
Information Required 
Projected Utilization 
Projected Patient Origin 
Site: Building 
Required Staffing 
Accessibility 
Relationship 
Performance Standards 
Certificate of Need 
Multi-County Groupings 
Certificate of Need 
Facility and Service Need 
Dialysis Station 
Reallocations 
Policies 

Information Required 
Accessibility 
Data Reporting 
Required Support 
Data Reporting 
Accessibility 
Data Reporting 
Definitions 
Data Reporting 
Accessibility 
Information Required 
Need for Services 
Data Reporting 
Accessibility 
Accessibility 
Data Reporting 
Data Reporting 
Accessibility 
Data Reporting 
Accessibility 
Definitions 
Information Required 
Need for Facility 
Data Reporting 
Accessibility 
Performance Standards 
Information Required 
Required Support 
Additional Requirements 
Additional Requirements 
Additional Requirements 
Additional Requirements 
Additional Requirements 
Need for Services 
Data Reporting 
Accessibility 
Information Required 



10 NCAC 3R 


.2610 


Repeal 


10 NCAC 3R 


.2612 


Adopt 


10 NCAC 3R 


.2613 


Adopt 


10 NCAC 3R 


.2718 


Repeal 


10 NCAC 3R 


.2719 


Repeal 


10 NCAC 3R 


.2802 


Amend 


10 NCAC 3R 


.2803 


Repeal 


10 NCAC 3R 


.2804 


Repeal 


10 NCAC 3R 


.2805 


Repeal 


10 NCAC 3R 


.2806 


Amend 


10 NCAC 3R 


.2807 


Repeal 


10 NCAC 3R 


.2809 


Repeal 


10 NCAC 3R 


.2810 


Adopt 


10 NCAC 3R 


.3001 


Amend 


10 NCAC 3R 


.3010 


Amend 


10 NCAC 3R 


.3020 


Amend 


10 NCAC 3R 


.3030 


Amend 


10 NCAC 3R 


.3032 


Amend 


10 NCAC 3R 


.3040 


Amend 


10 NCAC 3R 


.3050 


Amend 


10 NCAC 3R 


.3103 


Amend 


10 NCAC 3R 


.3107 


Repeal 


10 NCAC 3R 


.3108 


Repeal 


10 NCAC 3R 


.3204 


Amend 


10 NCAC 3R 


.3206 


Repeal 


10 NCAC 3R 


.3207 


Repeal 


10 NCAC 3R 


.3306 


Repeal 


10 NCAC 3R 


.3401 


Amend 


10 NCAC 3R 


.3406 


Repeal 


10 NCAC 3R 


.3407 


Repeal 


10 NCAC 3R 


.3502 


Amend 


10 NCAC 3R 


.3503 


Repeal 


10 NCAC 3R 


.3506 


Repeal 


10 NCAC 3R 


.3507 


Repeal 


10 NCAC 3R 


.3606 


Repeal 


10 NCAC 3R 


.3607 


Repeal 


10 NCAC 3R 


.3706 


Repeal 


10 NCAC 3R 


.3707 


Repeal 


10 NCAC 3R 


.3806 


Repeal 


10 NCAC 3R 


.3807 


Repeal 


10 NCAC 3R 


.3902 


Amend 


10 NCAC 3R 


.3903 


Amend 


10 NCAC 3R 


.3904 


Repeal 


10 NCAC 3R 


.3907 


Repeal 


10 NCAC 3R 


.3908 


Repeal 


10 NCAC 3R 


.3909 


Adopt 


10 NCAC 3R 


4002 


Amend 


10 NCAC 3R 


4003 


Amend 


10 NCAC 3R 


.4004 


Amend 


10 NCAC 3R 


.4005 


Amend 


10 NCAC 3R 


.4006 


Amend 


10 NCAC 3R 


.4007 


Amend 


10 NCAC 3R 


.4008 


Repeal 


10 NCAC 3R 


.4010 


Repeal 


10 NCAC 3R 


.4011 


Repeal 


10 NCAC 3R 


.4012 


Amend 


10 NCAC 3R 


.4102 


Amend 



1069 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



RULES REVIEW COMMISSION 



Required Performance 
Required Support 
Required Staffing 
Data Reporting 

Accessibility 
Information Required 
Required Support 
Accessibility 
Data Reporting 

DHR/CHILD DAY CARE COMMISSION 

Definitions 

Preservice Requirements 
Preservice Requirements 
Application for Permits 
Criminal Record Check 
Criminal Record Check 
Criminal Record Check 



10 NCAC 3R 


.4103 


Amend 


10 NCAC 3R 


.4104 


Amend 


10 NCAC 3R 


.4105 


Amend 


10 NCAC 3R 


.4106 


Repeal 


10 NCAC 3R 


.4107 


Repeal 


10 NCAC 3R 


.4202 


Amend 


10 NCAC 3R 


.4204 


Amend 


10 NCAC 3R 


.4206 


Repeal 


10 NCAC 3R 


.4207 


Repeal 


10 NCAC 3U 


.0102 


Amend 


10 NCAC 3U 


.0704 


Amend 


10 NCAC 3U 


.0710 


Amend 


10 NCAC 3U 


.2701 


Adopt 


10 NCAC 3U 


.2702 


Adopt 


10 NCAC 3U 


.2703 


Adopt 


10 NCAC 3U 


.2704 


Adopt 



DHR/SOCIAL SERVICES COMMISSION 

Preplacement Assessment 



10 NCAC 4 IP .0008 



Amend 



DEHNR/ENVmONMENTAL MANAGEMENT COMMISSION 

Activities Exempted 15A NCAC 2Q .0102 



Amend 



/ILDLIFE RESOURCES COMMISSION 










Wildlife Taken 


15A NCAC 


lOB 


.0106 


Amend 


Possession of Certam Species 


15A NCAC 


lOB 


.0123 


Amend 


Local Water Safety 


15A NCAC 


lOF 


.0307 


Amend 


Qualifications 


15A NCAC 


lOG 


.0102 


Repeal 


Change of Ownership 


15A NCAC 


lOG 


.0103 


Repeal 


Qualifications of Agents 


ISA NCAC 


lOG 


0202 


Repeal 


Change of Ownership 


15A NCAC 


lOG 


.0203 


Repeal 


Authority of Boat Registration 


ISA NCAC 


lOG 


.0206 


Repeal 


Qualifications of Agents 


ISA NCAC 


lOG 


.0302 


Repeal 


Change of Ownership 


ISA NCAC 


lOG 


.0303 


Repeal 


Purpose 


ISA NCAC 


lOG 


.0401 


Adopt 


Appointment 


ISA NCAC 


lOG 


.0402 


Adopt 


Wildlife Service Agent 


15a NCAC 


lOG 


.0403 


Adopt 


Customer Support System 


ISA NCAC 


lOG 


.0404 


Adopt 


Protection of Endangered Species 


ISA NCAC 


101 . 


0002 


Amend 



DEHNR/COMMISSION FOR HEALTH SERVICES 

Definitions 



ISA NCAC 18A .2601 



Amend 



NC LICENSING BOARD FOR GENERAL CONTRACTORS 

Eligibility 
Renewal of License 

OFFICE OF ADMINISTRATIVE HEARINGS 

Order Designating Complex 

Factors to be Considered 

Venue 

Expedited Hearing 

Rules and Procedures 



21 NCAC i: 


. .0204 


Amend 


21 NCAC i: 


. .0503 


Amend 


26 NCAC 3 


.0301 


Adopt 


26 NCAC 3 


.0302 


Adopt 


26 NCAC 3 


.0303 


Adopt 


26 NCAC 3 


.0304 


Adopt 


26 NCAC 3 


.0305 


Adopt 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1070 



RULES REVIEW COMMISSION 



RULES REVIEW OBJECTIONS 

BOARD OF DENTAL EXAMINERS 

21 NCAC 16H .0104 - Approved Education and Training Programs RRC Objection 09/19/96 

21 NCAC 16H .0202 - Specific Permitted Functions of Dental Assistant I RRC Objeaion 09/19/96 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Environmental Management 

15A NCAC 2B .0101 - General Procedures RRC Objeaion 07/18/96 

No Response fi-om Agency Obj. Cont 'd 08/15/96 

Agency Responded Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff. 10/01/96 

15A NCAC 2B .0103 - Analytical Procedures RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

.Agency Revised Rule Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff. 10/01/96 

15A NCAC 2B .0109 - Waters Affected by Dredge and Fill Activities RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

Obj. Removed 09/19/96 

15 A NCAC 28 .0201 - Antidegradation Policy RRC Objection 07/18/96 

No Response from Agency Obj. Cont 'd 08/15/96 

Agency Responded Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont 'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff. 10/01/96 

15A NCAC 28 .0202 - Definitions RRC Objection 07/18/96 

No Response from Agency Obj. Cont 'd 08/15/96 

Agency Revised Rule Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont 'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff. 10/01/96 

I5A NCAC 28 .0231 - Wetland Standards (Rule .0231 was Noticed as Rule .0220) RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

Agency Responded Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff. 10/01/96 

15A NCAC 2C .0211 - Permits RRC Objection 08/15/96 

Agency Revised Rule Obj. Removed 09/19/96 

15 A NCAC 2C .0213 - Additional Criteria and Standards Applicable to Class 5 Wells RRC Objection 08/15/96 

Agency Re\ised Rule Obj. Removed 09/19/96 

15A NCAC 2C .0214 - Abandonment and Change-of-Status of Wells RRC Objection 08/15/96 

Agency Revised Rule Obj. Removed 09/19/96 

15A NCAC 2D .0501 - Compliance with Emission Control Standards RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0608 - Program Schedule RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0901 - Definitions RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0926 - Bulk Gasoline Plants RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

ISA NCAC 2D .0934 - Coating of Miscellaneous Metal Parts and Products RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .1109 - Case-by-Case Maximum Achievable Control Technology RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2H .0501 - Purpose RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 



1071 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



RULES REVIEW COMMISSION 



Agency Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont 'd 
Agency Filed Rule for Codification Over RRC Objection Eff. 

15A NCAC 2H .0502 - Application RRC Objection 

No Response from Agency Obj. Cont 'd 

Agency Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont'd 
Agency Filed Rule for Codification Over RRC Objection Eff. 

ISA NCAC 2H .0503 - Public Notice RRC Objection 

No Response from Agency Obj. Cont 'd 

Agency Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont 'd 
Agency Filed Rule for Codification Over RRC Objection Eff. 

15A NCAC 2H .0504 - Hearing RRC Objection 

No Response from Agency Obj. Cont'd 

Agency Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont'd 
Agency Filed Rule for Codification Over RRC Objection Eff 

15A NCAC 2H .0506 - Criteria for Review of Applications RRC Objection 

No Response from Agency Obj. Cont'd 

Agency Revised Rule Obj. Cont'd 

Rule Returned to Agency Obj. Cont'd 
Agency Filed Rule for Codification Over RRC Objection Eff. 

15A NCAC 2H .0507 - Issuance of Certification RRC Objection 

No Response from Agency Obj. Cont'd 

Agency Responded Obj. Cont'd 

Rule Returned to Agency Obj. Cont 'd 
Agency Filed Rule for Codification Over RRC Objection Eff 

Commission for Health Services 

15A NCAC 13C .0302 - General Provisions RRC Objection 

15A NCAC 13C .0304 - Minimum Qualifications for Registered Env. Consultants RRC Objection 
15A NCAC 13C .0306 - Technical Standards for Registered Environmental Consultants RRC Objection 

15A NCAC 18A .3106 - Abatement RRC Objection 

Agency Revised Rule Obj. Removed 



09119196 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 



09/19/96 
09/19/96 
09/19/96 
07/18/96 
08/15/96 



Wildlife Resources Commission 

15A NCAC lOF .0104 - Certificate of Number 

Agency Revised Rule 
ISA NCAC lOF .0105 - Numbering Pattern 

Agency Revised Rule 
15 A NCAC lOF .0342 - Catawba County 

Rule 'Withdrawn by Agency 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



07/18/96 
08/15/96 
07/18/96 
08/15/96 

07/18/96 



HUMAN RESOURCES 



Social Services Commission 

10 NCAC 41 F .0707 - Criminal Histories 

No Response fiom Agency 

Agency Revised Rule 
10 NCAC 41 F .0813 - Criminal History Chechi 

No Response from Agency 

Agency Revised Rule 
10 NCAC 4 IF .0814 - Training Requirements 

No Response from Agency 

Agency Revised Rule 



RRC Objection 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Removed 



07/18/96 
08/15/96 
09/19/96 
07/18/96 
08/15/96 
09/19/96 
07/18/96 
08/15/96 
09/19/96 



11:13 



NORTH CAROLINA REGISTER 



October I, 1996 



1072 



RULES REVIEW COMMISSION 



INSURANCE 

11 NCAC 20 .0101 - Definitions 

Agency Re\'ised Rule 
11 NCAC 20 .0402 - Organization Structure 

Agency Re\ised Rule 
11 NCAC 20 .0404 - Application 

Agency Re\ised Rule 
11 NCAC 20 .0406 - Provider Files 

Agency Re\'ised Rule 
11 NCAC 20 .0501 - Program 

Agency Re\ised Rule 
11 NCAC 20 .0502 - Structure 

Agency^ Revised Rule 
11 NCAC 20 .0505 - Quality of Care Complaints 

Agency Revised Rule 
11 NCAC 20 .0701 - Accessibility of Providers 

Agency Withdrew Rule 

EXAMINERS FOR NXTiSEVG HOME AD>nMSTRATORS 

21 NCAC 37H .0102 - Continuing Education Programs of Study 
Agency Rexised Rule 



RRC Objection 
Obj. Removed 
RRC Objeaion 
Obj. Removed 
RRC Objeaion 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objeaion 
Obj. Removed 
RRC Objeaion 
Obj. Removed 
RRC Objeaion 
Obj. Cont'd 



RRC Objeaion 
Obj. Removed 



08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 



07/18/96 
08/15/96 



PSYCHOLOGY BOARD 

21 NCAC 54 .1901 - Types 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



08/15/96 
09/19/96 



REAL ESTATE COMAHSSION 

21 NCAC 58A .0104 - Agency Agreements and Disclosure 

Agency Revised Rule 
21 NCAC 58A .0113 - Reporting Criminal Convictions 

Agency Revised Rule 
21 NCAC 58A .0502 - Business Entities 

Agency Re\'ised Rule 
21 NCAC 58A .0610 - Subpoenas 

Agency Revised Rule 
21 NCAC 58E .0302 - Elective Course Component 

Agency Responded 

Agency Rexised Rule 



RRC Objeaion 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objeaion 
Obj. Removed 
RRC Objeaion 
Obj. Removed 
RRC Objeaion 
Obj. Cont'd 
Obj. Removed 



06/20/96 
07/18/96 
06/20/96 
07/18/96 
06/20/96 
06/20/96 
06/20/96 
07/18/96 
06/20/96 
07/18/96 
08/15/96 



re%'t:nlt 

17 NCAC IC .0504 - EFT General Requirements 
Agency Revised Rule 



RRC Objeaion 
Obj. Removed 



08/15/96 
09/19/96 



BOARD FOR LICENSING OF SOIL SCIENTISTS 

21 NCAC 69 .0102 - Duties of Officers 

21 NCAC 69 .0302 - Definitions 

21 NCAC 69 .0303 - Requirements 

21 NCAC 69 .0304 - Units 

21 NCAC 69 .0305 - Determination of Credit 

21 NCAC 69 .0307 - Exemptions 

21 NCAC 69 .0401 - Code of Professional Conduct 

21 NCAC 69 .0402 - Rules of Condua of Advertising 



RRC Objection 
RRC Objection 
RRC Objeaion 
RRC Objeaion 
RRC Objeaion 
RRC Objeaion 
RRC Objeaion 
RRC Objection 



09/19/96 
09/19/96 
09/19/96 
09/19/96 
09/19/96 
09/19/96 
09/19/96 
09/19/96 



TRANSPORTATION 



Division of Highwaj s 

19A NCAC 2D .1102 - Definitions 



RRC Objection 



08/15/96 



1073 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



RULES REVIEW COMMISSION 



I 



Agency Revised Rule 
19A NCAC 2D .1108- Goals 

Agency Revised Rule 
19A NCAC 2D .1111 - Performance Related Replacement of Eligible Firms 

Agency Revised Rule 



Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 



Division of Motor Vehicles 

19A NCAC 3E .0511 - Registration of Interstate Authority 



RRC Objection 



09/19/96 



Public Transportation and Rail Division 

19 A NCAC 6B .0412 - Procurements 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



08/15/96 
09/19/96 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1074 



CONTESTED CASE DECISIONS 



Ihis Section contains the full text of some of the more significant Administrative Loh.' Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the 
Office of Administrative Hearings, (919) 733-2698. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JUUAN MANN, UI 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores Nesnow Smith 
Thomas R. West 



AGENCY 



CASE 
>aBlBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

Douglas J. Register v. Department of Administration 
ALCOHOLIC BEVERAGE CONTROL COMMISSION 



96 DOA 0172 



Reilly 



08/16/96 



Osama Arafat Sadar v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. James Eads Sprowles 

Cole Entertainment, Inc. v. Alcoholic Beverage Control Commission 

Fuad Saif Murshed v. Ale. Bev. Ctl. Coram. & Durham Mem. Bapt. Ch. 

Alcoholic Beverage Control Commission v. Tremik, Inc. 

Alcoholic Beverage Control Commission v. Maria Virginia Tramontano 

Alcoholic Beverage Control Commission v. Huffman Oil Co.. Inc 

Pinakin P. Talate v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Entrepreneur. Inc. 

Alcoholic Beverage Control Commission v. Zell, Inc. 

Alcoholic Beverage Control Commission v. Henry Franklin Gurganus 

Andrew Parker v. Alcoholic Beverage Control Commission 

Barraq Sabri Alquza v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Partnership T/A T & L Groceries 

Alcoholic Beverage Control Commission v. Cashion's Food Mart, Inc. 

Alcoholic Beverage Control Commission v. E.K.'s U, Inc. Carl E. Collins 95 

Bro Bee, Inc. v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Donald Ray Doak 

Alcoholic Beverage Control Commission v. Janice Lorraine Jeter 

Alcoholic Beverage Control Commission v. Well Informed. Inc. 

Alcoholic Beverage Control Commission v. Kubhard, Inc. 

Alcoholic Beverage Control Commission v. Stemmermans's, Inc. 

George Wright and Alice Ramsuer v. Alcoholic Beverage Control Comm 

Alcoholic Beverage Control Commission v. Bayron Green 

Alcoholic Beverage Control Commission v. Robert Montgomery McKnight96 

Gerald Audry Sellars v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony 

Alcoholic Beverage Control Commission v. Factory Night Club, Inc. 



95 ABC 0721 


Gray 


07/09/96 




95 ABC 0883*' 


Gray 


07/10/96 




95 ABC 0917 


West 


08/21/96 


11:12 NCR 1027 


95 ABC 0922 


Chess 


04/24/96 




95 ABC 0925 


Morrison 


03/25/96 




95 ABC 


1200 


West 


04/23/96 




95 \BC 


1251 


West 


04/03/96 


11:03 NCR 166 


95 ABC 


1329 


West 


04/10/96 




95 ABC 


1363 


Reilly 


05/02/96 




95 ABC 


1366 


West 


06/17/96 




95 ABC 


1389 


West 


04/01/96 




95 ABC 


1402 


Phipps 


03/27/96 




95 ABC 


1424 


Phipps 


04/03/96 




95 ABC 


1443 


West 


03/26/96 




95 ABC 


1444 


Gray 


03/13/96 




95 ABC 


1458 


Chess 


08/12/96 




95 ABC 


1480 


West 


04/15/96 




95 ABC 


1488 


West 


03/29/96 




96 ABC 0013 


Reilly 


04/26/96 




96 ABC 0016 


Chess 


05/28/96 




96 ABC 0017 


Reilly 


05/20/96 




96 ABC 0018 


Chess 


05/28/96 




96 ABC 0058 


Becton 


04/16/96 




96 ABC 0097 


Becton 


08/23/96 




96 ABC 0135 


Phipps 


05/09/96 




96 ABC 0160 


Becton 


06/25/96 


11:08 NCR 564 


96 ABC 0184 


Phipps 


05/09/96 




96 ABC 0226 


Phipps 


08/02/96 





1075 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



CONTESTED CASE DECISIONS 



AGENCY 



Alcoholic Beverage Control Commission v. C.N.H. Enterprises. Inc. 
Alcoholic Beverage Control Commission v. Millicent J. Green 
Ghassan Hasan Issa v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Abdelhakeem Muraweh Saleh 
Alcoholic Beverage Control Commission v. Triangle Drive-In 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Giles Rozier 
Alcoholic Beverage Control Commission v. Clifton Franklin Smith 
Dilthra Smith Patlon v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. James Eads Sprowles 
Alcoholic Beverage Control Commission v. Albert S. Carter 
Alcoholic Beverage Control Comm. v. Centergrove Entertainment Ent. 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


96 ABC 0232 


Becton 


07/09/96 


96 ABC 0234 


Nesnow Smith 


06/13/96 


96 ABC 0256 


Morrison 


05/23/96 


96 ABC 0381 


Chess 


08/27/96 


96 ABC 0443 


ReiUy 


06/11/96 


96 ABC 0447 


Morrison 


08/30/96 


96 ABC 0448 


Morrison 


08/30/96 


96 ABC 0449 


Momson 


08/30/96 


96 ABC 0450 


Morrison 


08/30/96 


96 ABC 0473 


Morrison 


09/19/96 


96 ABC 0474 


Reilly 


08/12/96 


96 ABC 0505 


Morrison 


08/06/96 


96 ABC 0526*' 


Gray 


07/10/96 


96 ABC 0534 


Morrison 


08/05/96 


96 ABC 0583 


Reilly 


08/12/96 



PUBLISHED DECISION 
REGISTER CITATION 



11:13 NCR 1085 



COMMISSION FOR AUCTIONEERS 



John W. Foster v. Auctioneer Licensing Board 
DEPARTMENT OF CORRECTION 



96 CFA 0201 



Phi 



pps 



05/06/96 



James J. Lewis v. Department of Correction 
CRIME CONTROL AND PUBLIC SAFETY 



96 DOC 0772 



West 



09/05/96 



Roland Lee Kelly, Jr. v. United Family Services, Victim Assistance/Crime 95 

Victims Compensation Comm. 
Robert F. Bronsdon v. Crime Victims Compensation Commission 
Helen B. Hunter-Reid v. Crime Victims Compensation Commission 
Deborah C. Passarelli v. Crime Victims Compensation Commission 
Kenneth Saunders v. Victims Compensation Commission 
Franklin McCoy Jones v. Crime Victims Compensation Commission 
Ruby H. Ford v. Crime Victims Compensation Commission 
Manuel Cervantes v. Victims Compensation Fund 
Sheila Carol Blake v. Victims Compensation Commission 
James T. Mungo v. Victims Compensation Commission 
Jerome Crutchfleld v. CPS, Victims Compensation Commission 
William TTieodore Frazier v. Crime Victims Compensation Commission 
Donna Williams v. Crime Victims Compensation Commission 
Anthony P. Dawkins v- Crime Victims Compensation Commission 
Shirley M. King v. Crime Victims Compensation 
Mark Matthews for Child Victim v. Crime Victims Compensation Comm 



95 CPS 0568 


Morrison 


05/29/96 






95 CPS 1216 


Chess 


05/28/96 






95 CPS 1336 


Nesnow Smith 


03/29/96 


1 1 :02 NCR 


93 


95 CPS 1399 


Reilly 


07/18/96 


11:09 NCR 


814 


95 CPS 1445 


Chess 


03/26/96 






96 CPS 0056 


Nesnow Smith 


07/03/96 






96 CPS OHO 


Reilly 


04/18/96 






96 CPS 0118 


Chess 


03/19/96 






96 CPS 0280 


West 


07/10/96 






96 CPS 0333 


Reilly 


07/09/96 






96 CPS 0340 


Phipps 


09/05/96 






96 CPS 0435 


Chess 


08/22/96 






96 CPS 0493 


Morrison 


06/13/96 






96 CPS 0716 


Reilly 


08/16/96 






96 CPS 0802 


West 


08/08/96 






96 CPS 0832 


Becton 


08/20/96 







ENVIRONMENT. HEALTH, AND NATURAL RESOURCES 



Gribblc & Assoc. & Four Seasons Car Wash v. EHNR 

Wilton Evans v. Environment, Health, & Natural Resources 

David Martin Shelton v. Rockingham County Dept/Public Health, EHNR 

Kinston Urological Associates, P. A. v. N.C. Cancer Program 

Kinston Urological Associates, P. A. v. N.C. Cancer Program 

Elsie &. Tony Cecchini v. Environment, Health, & Natural Resources 

United Organics Corporation v. Environment, Health. & Natural Res. 

Gerald Mac Clamrock v. Environment, Health, & Natural Resources 

John Milazzo v. Environment, Health, & Natural Resources 



95 EHR 0576 


Gray 


04/25/96 






95 EHR 0843 


Reilly 


07/17/96 






95 EHR 0941 


West 


05/01/96 






95 EHR 1198*- 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1199*^ 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1240 


Reilly 


04/22/96 






96 EHR 0064 


Nesnow Smith 


07/01/96 






96 EHR 0168 


Phipps 


05/06/96 






96 EHR 0644 


Reilly 


08/13/96 







Coastal Resources 

Martin W. Synger v. Division of Coastal Management 95 EHR 1006 Chess 05/13/96 

J. E. Smith Construction Co. v. Division of Coastal Management 96 EHR 0074 Nesnow Smith 02/23/96 

Theodore D. Barris v. Town of Long Beach, NC &. Coastal Mgmt, EHNR 96 EHR 0277 West 05/09/96 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1076 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Environmental Health 

Forest Gate Motel v. Environment, Health, and Natural Resources 96 EHR 0076 

Paradise Ridge Home Owners by Anne Norbura v. EHNR. Env. Health 96 EHR 0162 

Environmental Managetnent 

Herman E. Smith v. Division of Environmental Management 95 EHR 0962 

Conover Lumber Co., Inc. v. EHNR, Division of Environmental Mgmt. 95 EHR 1081 

Jack West d/b/a Jack West Tree Service v. Environmental Mgmt. Comm. 95 EHR 1421 

The Smithfield Packing Co., Inc., v. EHNR, Environmental Mgmt. 95 EHR 1474 
and 
Citizens for Clean Industry, Inc. and Bladen Environment 

Clover M Farms, Inc. v. EHNR, Division of Environmental Management 96 EHR 0405 

Providence Glen Associates v. Environmental Management, EHNR 96 EHR 0648 



West 
Phipps 



06/17/96 
05/06/96 



West 


04/30/96 


Reilly 


04/12/96 


Morrison 


04/08/96 


West 


07/03/96 


Becton 


06/10/96 


Becton 


08/12/96 



Land Resources 



K&.G Properties. Inc. v. EHNK, Division of Land Resources 



95 EHR 1078 



Nesnow Smith 



03/25/96 



Marine Fisheries 

Robert I. Swinson. Sr. v. EHNR, Health &. Nat. Res.. Marine Fisheries 95 EHR 0320 

Grayden L. Fulcher and Michael Styron. Sr. v. Div. of Marine Fisheries 96 EHR 0003 

Johnny R. Stotcsberry v. Marine Fisheries Commission 96 EHR 0072 



Chess 


03/29/96 


11:03 NCR 168 


Reilly 


03/06/96 




Gray 


08/19/96 


11:11 NCR 955 



Solid Vr'aste Management 



R. Donald Phillips v 
R, Donald Phillips v 

WIC Program 



EHNR, Solid Waste Management Division 95 EHR 1190** Gray 

EHNR, Solid Waste Management Division 96 EHR 0554*^ Gray 



05/22/96 
05/22/96 



Lazelle Marks v. EHNR, Division of Maternal and Child Health 95 EHR 0870 

Hani Sadcr v. Nutrition Services, Div/Matemal & Child Health, EHNR 96 EHR 0054 

Bob's Quick Mart, Bobby D. Braswell v. Env., Health, & Natural Res. 96 EHR 0091 

Larry E. Mis v. USDA-Food/Cons Svc, Cory Menees-WlC Prog., EHNR 96 EHR 0164 

Naser H. Hammad v. Dept. of Environment, Health, & Natural Resources 96 EHR 0632 

Jamil M. Saleh v. Dept. of Environment, Health, & Natural Resources 96 EHR 0634 

Khaled M. Alzer v. Dept. of Environment, Health, & Natural Resources 96 EHR 0721 



EQUAL EMPLOYMENT OPPORTUNITIES 

Carl D. Davis v. Department of Correction 
HUMAN RESOURCES 



West 




03/27/96 


West 




05/22/96 


Nesnow 


Smith 


04/02/96 


Phipps 




03/19/96 


Reilly 




07/09/96 


Phipps 




09/04/96 


Reilly 




07/30/96 



91 EEC 1101 Nesnow Smith 



05/06/96 



Cassandra M. Deshazo v. Christine E. Carroll, Chf Chid Ahuse/Neg. See. 95 DHR 1410 Phipps 03/28/96 

Medicus Robinson v. Department of Human Resources 96 DHR C167 Nesnow Smith 04/12/96 

Division of Child Development 

Molly Fallin v. Department of Human Resources 
Molly Fallin v. Department of Human Resources 
Mary T. Hill v. DHR, Division of Child Development 
Tola Roberson v. DHR, Division of Child Development 
Zanme M. Allen v. DHR, Division of Child Development 

Division of Facility Services 

Eloise Brown v. Dept. of Human Resources, Division of Facility Services 95 DHR 1002 Phipps 03/07/96 

Harry Martin Bastian v. DHR, Division of Facility Services 96 DHR 0287 West 08/21/96 

Certificate of Need Section 

Nash Hospitals, Inc. v. DHR, Div/Facility Services, Cert, of Need Sect. 95 DHR 1176** Phipps 05/23/96 

Pitt Cty Mem. Hospital, Inc. v. DHR, Div/Facility Sries, Cert/Need Sect. 95 DHR 1177*^ Phipps 05/23/96 



94 DHR 0872*^ 


Gray 


05/15/96 


95 DHR 1013*^ 


Gray 


05/15/96 


95 DHR 1192 


Phipps 


03/27/96 


95 DHR 1244 


Gray 


05/16/96 


96 DHR 0304 


Gray 


08/15/96 



11:06 NCR 389 
11:06 NCR 389 



1077 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Group Care Licensure Section 

Alex L. McCall v. DHR, Div/Facility Svcs, Group Care Licensure Sec. 95 DHR 1456 
DHR. Facility Services, Group Care Licensure Sect. v. Petrova Evans 96 DHR 0544 

Medical Facilities Licensure Section 

Deborah Reddick v. Department of Human Resources 96 DHR 0240 

Stacey Yvette Franklin v. Facility Services, Medical Facilities Lie. See. 96 DHR 0358 

Division of Medical Assistance 

Judy Malcuit. Re Melissa Malcuit v. DHR. Div. of Medical Assistance 96 DHR 0129 

Division of Social Services 

Crystean Fields v. Department of Human Resources 

Rozena Chambliss v. Department of Human Resources 

Addie & Major Short v. Department of Human Resources 

Mr. and Mrs. Jessie Stevenson v. DHR, Division of Social Services 

William G. Fisher v. DHR, Div. of Social Services. Prog Integrity Branch 95 DHR 1234 

Vema F. Nunn v. Department of Human Resources 

Nancy Hooker, Helen Tyndall v. Department of Human Resources 



Child Support Enforcement Section 

Donald E. Rideout Jr. v. Department of Human Resources 
Christopher F. Roakes v. Department of Human Resources 
Claude Eure Jr. v. Department of Human Resources 
Richard R. Fox, Sr. v. Department of Human Resources 
Joseiito D. Pilar v. Department of Human Resources 
David Lee Grady v. Department of Human Resources 
Patrick Orlando Crump v. Department of Human Resources 
Peter Robert Kovolsky v. Department of Human Resources 
Tony Lee Zapata v. Department of Human Resources 
Lawrence Dow Dean v. Department of Human Resources 
Carl E. Coffey v. Department of Human Resources 
Keith Dewayne Senters v. Department of Human Resources 
Lonnie Dawes v. Department of Human Resources 
Mickey Turner v. Department of Human Resources 
James Joseph Gallagher v. Department of Human Resources 
James Thomas McRae v. Department of Human Resources 
Vincent E. Koehler v. Department of Human Resources 
David J. Moseley v. Department of Human Resources 
Derrick L. Conyers v. Department of Human Resources 
Charles Edward Smith v. Department of Human Resources 
Kevin Vereen v. Department of Human Resources 
James Curtis Witwer v. Department of Human Resources 
Thomell Bowden v. Department of Human Resources 
Henry S. Sada v. Department of Human Resources 
Charles F. Moore v. Department of Human Resources 
Daniel Leslie Baker v. Department of Human Resources 
Kenneth L. Lindsey v. Department of Human Resources 
John L. Pike v. Department of Human Resources 
Wm. R. Evans v. Department of Human Resources 
Rory J. Curry v. Department of Human Resources 
Lorin A. Brown v. Department of Human Resources 
Marcus Anthony Butts v. Department of Human Resources 
Cynlhia Pinder v. Department of Human Resources 
Rhonnie J. Williams v. Department of Human Resources 
Ramon Domenech v. Department of Human Resources 
Lennard J. Watson v. Department of Human Resources 
Dennis L. McNeill v. Department of Human Resources 
Tony A. Rogers v. Department of Human Resources 
Rick E. Atkins v. Department of Human Resources 
Timothy A. Ratley (Jeanes) v. Department of Human Resources 
Richard E. Reader v. Department of Human Resources 
Wendel McDonald v. Department of Human Resources 



Nesnow Smith 
Phipps 



Reilly 
Morrison 



Gray 



03/26/96 
OS/2 1/96 



06/18/96 
05/16/96 



06/12/96 



95 DHR 1001 


Gray 


07/05/96 


95 DHR 1044 


Nesnow Smith 


03/12/96 


95 DHR 1063 


Morrison 


03/19/96 


95 DHR 1072 


Phipps 


03/15/96 


95 DHR 1234 


Morrison 


03/19/96 


95 DHR 1330 


Gray 


04/11/96 


96 DHR 0155 


Gray 


04/26/96 



95 CSE 0952 


Reilly 




04/18/96 


95 CSE 


1131 


Becton 




05/03/96 


95 CSE 


1155 


Phipps 




06/12/96 


95 CSE 


1169 


Becton 




03/19/96 


95 CSE 


1180 


Chess 




03/01/96 


95 CSE 


1218 


Morrison 




03/26/96 


95 CSE 


1221 


Nesnow Si 


[nith 


03/05/96 


95 CSE 


1230 


Becton 




03/11/96 


95 CSE 


1266 


Gray 




05/02/96 


95 CSE 


1267 


Morrison 




03/29/96 


95 CSE 


1270 


Nesnow Si 


mth 


03/15/96 


95 CSE 


1273 


Phipps 




04/01/96 


95 CSE 


1274 


Nesnow Si 


nith 


06/12/96 


95 CSE 


1278 


Nesnow Si 


nith 


03/14/96 


95 CSE 


1280 


Chess 




03/19/96 


95 CSE 


1296 


Chess 




03/15/96 


95 CSE 


1301 


Phipps 




05/09/96 


95 CSE 


1304 


Chess 




03/29/96 


95 CSE 


1308 


Reilly 




03/13/96 


95 CSE 


1309 


West 




03/07/96 


95 CSE 


1315 


Phipps 




05/06/96 


95 CSE 


1331 


Becton 




03/26/96 


95 CSE 


1345 


Morrison 




03/07/96 


95 CSE 


1367 


Nesnow Si 


nith 


03/21/96 


95 CSE 


1369 


Chess 




03/27/96 


95 CSE 


1373 


Morrison 




03/12/96 


95 CSE 


1375 


West 




06/24/96 


95 CSE 


1376 


Nesnow Smith 


03/21/96 


95 CSE 


1377 


Becton 




03/11/96 


95 CSE 


1380 


Mann 




03/15/96 


95 CSE 


1382 


Reilly 




04/18/96 


95 CSE 


1405 


Nesnow Smith 


03/27/96 


95 CSE 


1406 


Becton 




03/11/96 


95 CSE 


1407 


Chess 




05/06/96 


95 CSE 


1408 


Phipps 




03/11/96 


95 CSE 


1414 


Mann 




08/23/96 


95 CSE 


1435 


Becton 




03/13/96 


95 CSE 


1436 


Chess 




05/16/96 


95 CSE 


1437 


Phipps 




04/01/96 


95 CSE 


1465 


Morrison 




03/26/96 


95 CSE 


1469 


Nesnow Smith 


04/29/96 


95 CSE 


1470 


Becton 




07/29/96 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1078 



CONTESTED CASE DECISIONS 



AGENCY 



Vk'ilbur Dewayne Bault v. Department of Human Resources 

Reginald B, Bratton Sr. v. Department of Human Resources 

James C. Smith v. Department of Human Resources 

Ronald D. Johnson v. Department of Human Resources 

Johnny Lcary v. Department of Human Resources 

Jimmy Strickland v. Department of Human Resources 

John W. Scott V. Department of Human Resources 

CaJvin S. Austin v. Department of Human Resources 

Derek Henslce v. Department of Human Resources 

Donald L. Carr, Jr. v. Department of Human Resources 

Norman Waycaster v. Department of Human Resources 

Lorenzo Wilson v. Department of Human Resources 

Mark Kevin Bums v. Department of Human Resources 

Cyril Lloyd Payne v. Department of Human Resources 

Charles H. Johnson v. Department of Human Resources 

Willie James Myers v. Department of Human Resources 

Christopher F. Byrne v. Department of Human Resources 

Richard Painall Burch v. Department of Human Resources 

Charles Gillispie v. Department of Human Resources 

Teresa Reynolds v. Department of Human Resources 

Thome!! Bowden v. Department of Human Resources 

Kenneth Edward Bums v- Department of Human Resources 

Carl R. Ritter v. Department of Human Resources 

William Charles Rorie v. Department of Human Resources 

Leon Gibson v. Department of Human Resources 

Dioni Delvalle, D v. Department of Human Resources 

Gerald Roger Beachum Jr. v. Department of Human Resources 

Anderson L Wardlow v. Department o{ Human Resources 

Danie! J. Carter v. Department of Human Resources 

Kelvin Tarlton v. Department of Human Resources 

Steven Craig Mooney v. Department of Human Resources 

John L. Cherry Jr. v. Department of Human Resources 

Arthur Jemerson v. Department of Human Resources 

Michael S. Covington v. Department of Human Resources 

Gary Steele v. Department of Human Resources 

Terry Sealey v. Department of Human Resources 

Jackie L. Kopczick v. Department of Human Resources 

Virginia McDowell Ramsey v. Department of Human Resources 

D. Wayne Gray v. Department of Human Resources 

Claude R. Anderson v. Department of Human Resources 

Alan Kendell Locklear v. Department of Human Resources 

Douglas F. McBryde v. Department of Human Resources 

Thomas White v. Department of Human Resources 

James Trevor Emerson v Department of Human Resources 

Ray Davis Hood v. Department of Human Resources 

Leon McNair v. Department of Human Resources 

John William White v. Department of Human Resources 

Hazel L. Walker v. Department of Human Resources 

Taylona Y. Manns v. Department of Human Resources 

Carl S. McNair v. Department jf Human Resources 

David Agurs v. Department of Human Resources 

King Sanders Jr. v. Department oi Human Resources 

Sandra Kay Carpenter v. Department of Human Resources 

Christopher Clyde Barrino Jr. v. Department of Human Resources 

Clinton Sutton v. Department of Human Resources 

Dave L. James v. Department of Human Resources 

Jonathan Bernard Copper v. Department of Human Resources 

Franklin D. Deese v. Department of Human Resources 

Renee G. Arriola v. Department of Human Resources 

Melinda S. Tunner v. Department of Human Resources 

Jeanne G. Bishop v. Department of Human Resources 

Rebecca Beaver v. Department oi Human Resources 

Vivian B. White v. Department of Human Resources 

Mary R, Mahon v. Department o{ Human Resources 

Mary R. Mahon v. Department of Human Resources 

Laura Heidorf v. Department of Human Resources 

Lois Floyd Barber v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


.\LJ 


DECISION 


«5 CSE 1475 


West 


03/13/96 


96 CSE 0002 


Mann 


08/23/96 


96 CSE 0034 


Gray 


05/10/96 


96 CSE 0084 


Nesnow Smith 


03/27/96 


96 CSE 00S5 


Becton 


05/03/96 


96 CSE 0119 


Chess 


07/08/96 


96 CSE 0130 


Mann 


03/15/96 


96 CSE 0140 


Phipps 


05/17/96 


96 CSE 0188 


Reilly 


05/17/96 


96 CSE 0200 


West 


05/50/96 


96 CSE 0245 


Becton 


05/16/96 


96 CSE 0257 


Phipps 


05/06/96 


96 CSE 0271 


Morrison 


06/24/96 


96 CSE 0272 


Reilly 


05/31/96 


96 CSE 0295 


West 


07/15/96 


96 CSE 0299 


Becton 


07/19/96 


96 CSE 0336 


Chess 


06/26/96 


96 CSE 0339 


Phipps 


06/27/96 


96 CSE 0365 


Mann 


07/23/96 


96 CSE 0369 


Gray 


07/23/96 


96 CSE 0370 


Morrison 


05/17/96 


96 CSE 0379 


Reilly 


07/18/96 


96 CSE 0380 


West 


05/08/96 


96 CSE 0388 


Nesnow Smith 


08/01/96 


96 CSE 03S9 


Becton 


07/02/96 


96 CSE 0407 


Chess 


07/17/96 


96 CSE 0411 


Phipps 


06/24/96 


96 CSE 0412 


Mann 


08/05/96 


96 CSE 0417 


Gray 


06/24/96 


96 CSE 0424 


Morrison 


05/29/96 


96 CSE 0425 


Reilly 


07/08/96 


96 CSE 0426 


West 


06/24/96 


96 CSE 0427 


Nesnow Smith 


08/01/96 


96 CSE 0428 


Becton 


08/02/96 


96 CSE 0429 


Chess 


08/26/96 


96 CSE 0430 


Phipps 


05/29/96 


96 CSE 0431 


Mann 


06/05/96 


96 CSE 0464 


Gray 


08/02/96 


96 CSE 0465 


Morrison 


08/02/96 


96 CSE 0502 


Reilly 


07/22/96 


96 CSE 0503 


West 


05/30/96 


96 CSE 0518 


Becton 


08/19/96 


96 CSE 0519 


Chess 


08/29/96 


96 CSE 0545 


Phipps 


07/25/96 


96 CSE 0547 


Mann 


09/12/96 


96 CSE 0557 


Morrison 


08/08/96 


96 CSE 0558 


Reilly 


08/14/96 


96 CSE 0559 


West 


06/24/96 


96 CSE 0564 


Nesnow Smith 


08/15/96 


96 CSE 0568 


Becton 


06/24/96 


96 CSE 0580 


Chess 


06/13/96 


96 CSE 0581 


Phipps 


08/22/96 


96 CSE 0595 


Gray 


08/29/96 


96 CSE 0603 


Morrison 


08/26/96 


96 CSE 0629 


Reilly 


08/29/96 


96 CSE 0638 


West 


07/15/96 


96 CSE 0642 


Phipps 


09/03/96 


96 CSE 0690 


Mann 


07/23/96 


96 CSE 0790 


Becton 


08/14/96 


95 DCS 0921 


Morrison 


05/09/96 


95 DCS 0958 


West 


04/04/96 


95 DCS 1114 


Reilly 


04/26/96 


95 DCS 1115 


Phipps 


06/04/96 


95 DCS 1137*' 


Chess 


06/11/96 


95 DCS 1142*' 


Chess 


06/11/96 


96 DCS 0065 


Reilly 


03/22/96 


96 DCS 0176 


Gray 


07/30/96 



PUBLISHED DECISION 
REGISTER CITATION 



1079 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



INSURANCE 

Carol M. Hall v. Teachers & Slate Employees Comp. Major Medical Plan 95 INS 1141 Phipps 04/01/96 

Arthur Wayne Dempscy v. Department of Insurance 95 INS 1255 Nesnow Smith 04/22/96 

Deborah B. Beavers V. Teachers & St. Emp. Comp. Major Med. Plan 95 INS 1411 Nesnow Smith 05/10/96 

Nadia A. Hakim V. Department of Insurance 95 INS 1422 Nesnow Smith 03/26/96 

Mary Alice Casey V. Department of Insurance 96 LNS 0148 Reilly 08/14/96 



11:05 NCR 308 



JUSTICE 

Wendy Atwood v. Department of Justice (Company Police Program! 
Deborah K. Torrance v Company Police Program Administrator 

Education and Training Standards Division 

Freddie Levem Thompson v, Criml. Justice Ed. &. Training Stds. Comm. 

Shane Douglas Crawford v. Sheriffs' Ed. & Training Stds. Comm. 

Charles Henry Daniels v. Criml. Justice Ed. & Training Stds. Comm. 

Valerie Ma.Kine Brewington v. Criml. Justice Ed. & Training Stds. Comm 

Patricia Josephine Bonanno v. Sheriffs' Ed. Sl Training Stds. Comm. 

Douglas Allan Stuart v. Sheriffs' Ed. & Training Stds. Comm. 

Rick M. Evoy v. Criminal Justice Ed. & Training Stds. Comm. 

Windell Daniels v. Criminal Justice Ed. & Training Stds. Comm. 

Gregory Lee Daughlridge v. Sheriffs' Ed. & Training Stds. Comm. 

Shcme Arm Gainey v. Sheriffs' Ed. & Training Stds. Comm. 

Stuart Hugh Rogers v. Sheriffs' Ed. & Training Stds. Comm. 

Brian Thomas Craven v. Sheriffs' Ed. & Training Stds. Comm. 

Larry D. Weston v. Sheriffs' Ed. & Training Stds. Comm. 

Carlton Gerald v. Criminal Justice Ed. & Training Stds. Comm. 

Ken Montie Oxendme v. Criminal Justice Ed. &. Training Stds. Comm. 

James Leon Hunt v. Criminal Justice Ed. &. Training Stds. Comm. 

David Kent Knight v. Sheriffs' Ed. & Training Stds. Comm 

Demetrius Amez Brown v Criminal Justice Ed. Si Training Stds Comm. 

Claude F. Nunnerj v. Sheriffs' Ed. & Training Stds. Comm. 

John Charles Maloney v. Sheriffs' Ed. & Training Stds Comm. 

Jimmie L. Cooper v. Sheriffs' Ed. & Training Stds. Comm. 

Jerry Glenn Monette v. Sheriffs' Ed. & Training Stds. Comm. 

Carlton Gerald v. Criminal Justice Ed. <fc Training Stds. Comm. 

Warren Scott Nail v. Criminal Justice Ed. &. Training Stds. Comm. 

George Willie Gilliam v Sheriffs' Ed. & Training Stds. Comm. 

Glenn R. Brammer v Sheriffs' Ed. & Training Standards Comm 

Timothy Wayne Fulford v Sheriffs' Ed. &. Training Stds. Comm. 

Private Protective Services Board 



96 DOJ 0111 
96 DOJ 0363 



Chess 
Becton 



08/07/96 
08/14/96 



95 DOJ 0731 


Chess 




02/29/96 


95 DOJ 0943 


Reilly 




05/17/96 


95 DOJ 1070 


West 




06/12/96 


95 DOJ 1 129 


Nesnow S 


mith 


04/12/96 


95 DOJ 1152 


Chess 




03/25/96 


95 DOJ 1189 


Morrison 




06/06/96 


95 DOJ 1235 


Chess 




03/25/96 


95 DOJ 1320 


Gray 




07/24/96 


96 DOJ 0027 


Reilly 




03/19/96 


96 DOJ 0028 


Becton 




08/09/96 


96 DOJ 0029 


West 




06/18/96 


96 DOJ 0036 


Gray 




07/09/96 


96 DOJ 0037 


Nesnow S 


mith 


06/12/96 


96 DOJ 0068 


Gray 




03/26/96 


96 DOJ 0071 


West 




03/28/96 


96 DOJ 0077 


Phipps 




07/25/96 


96 DOJ 0115 


West 




03/28/96 


96 DOJ 0138 


Becton 




08/09/96 


96 DOJ 0305 


Gray 




08/28/96 


96 DOJ 0306 


Nesnow Smith 


08/16/96 


96 DOJ 0352 


Momson 




07/12/96 


96 DOJ 0420 


Morrison 




07/26/96 


96 DOJ 0432 


Becton 




08/07/96 


96 DOJ 0576 


Becton 




08/07/96 


96 DOJ 0656 


Morrison 




08/02/96 


96 DOJ 0839 


Nesnow Si 


mith 


09/05/96 


96 DOJ 0840 


Nesnow Si 


mith 


09/16/96 



11:10 NCR 874 



Timolhy A. Hawkins v. Pnvate Protective Services Board 
William F. Combs v- Private Protective Services Board 
Randy C Hoyle v. Private Protective Services Board 
Robert A. Gibson v. Private Protective Services Board 
Jimmy D. Matthews v. Private Protective Services Board 
Johnnie Lee King v. Private Protective Services Board 
TTiomas R. Harris v. Private Protective Services Board 
Private Protective Services Board v- Henry E. Byrd, Jr 
Private Protective Ser^'ices Board v. Charles T. Malhis 



95 DOJ 1419 


West 




04/12/96 


96 DOJ 0022 


West 




03/22/96 


96 DOJ 0024 


Nesnow 


Smith 


06/10/96 


96 DOJ 0386 


Nesnow 


Smith 


07/03/96 


96 DOJ 0676 


Reilly 




07/11/96 


96 DOJ 0677 


Reilly 




07/11/96 


96 DOJ 0761 


Reilly 




07/11/96 


96 DOJ 0796 


Mann 




08/19/96 


96 DOJ 0798 


Mann 




08/27/96 



MEDICAL BOARD 



Medical Board v. Martin A. Hatcher, M.D. 
PUBLIC INSTRUCTION 



92BME0510 Gray 



06/28/96 



11:08 NCR 555 



Lavem K. Suggs v. NC Board of Education 

J.T.S. & T.S., Parents of E.M.S. v. Chapel Hill-Carrhoro City Schl. Sys. 

L.O. V. Charlotte-Mecklenburg Board o{ Education 

Candyce Ewanda Newsome v. Hertford County Board of Education 

W. and G.B., on Behalf of C.B. v. Winston-Salem/Forsyth Cty. Schools 

Cyvonne Rush Bryant v. NC State Board of Education 

Blaise Malveau v. Cumberland County Board of Education 



95 EDC 0383 


Nesnow Smith 


03/13/96 


95 EDC 1194 


Mann 


04/12/96 


96 EDC 0285 


Mann 


05/31/96 


96 EDC 0344 


Chess 


05/15/96 


96 EDC 0349 


Mann 


09/03/96 


96 EDC 0591 


Becton 


09/11/96 


96 EDC 0613 


Chess 


08/14/96 



11:01 NCR 50 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1080 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Blaise Malveau v, Cumberland County Board of Education 96 EDO 0614 

John Barlow v Watauga County Board of Education 96 EDC 0623 

John L. Archer v. Department of Public Instruction 96 EDC 0678 

Pamela F. Cummings v. Department of Public Instruction 96 EDC 0742 

Susie Whitley/Brandon Whitley v. Charlotte-Meeklcnburg Bd. of Ed. 96 EDC 0964 

STATE PERSONNEL 

Department of Administration 

Jimmie A. Hughes, Jr. v. Department of Administration 96 OSP 0008 

Jonathan L. Fann v. Department of Administration, Admin. Personnel 96 OSP 0042 

Carlton Gerald v. State Capitol Police, Department of Administration 96 OSP 0116 

Administrative Office of the Court 

Elhcl R. Tyson v. NC Judicial Dcpt., Administrative Office of the Court 96 OSP 0080 

Appalachian State University 

Janice S. Walton v, Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0062 
Janice S. Carroll v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0063 

Caldwell County 

Blake C Pace v. Caldwell County 96 OSP 0047 

NC Central University 

Francina Y. Tate v. Chancellor Julius L. Chambers, NC Central Univ. 95 OSP 1432 

Central Sorth Carolina School for the Deaf 

Felicia S. Milton v. Central North Carolina School for the Deaf 95 OSP 1241 Chess 

Department of Correction 



Haydee Craver v. Department of Correction, Pender Correctional Inst. 

Gregory Allen Jones v. Department of Correction, Supt. Bonnie Boyette 

Carolyn Cheek v. Department of Correction 

Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 

Alisha Louise Staley v. Randolph Correctional Center 

Brenda Propst v. Foothills Correctional Institution 

Delon D. Solomon v. Department of Correction 

Alisha Louise Staley v. Randolph Correctional Center 

Haydee C. Craver v. Department of Correction, Christopher Phillips 

Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffcry Clark 

v. Department of Correction 
Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffcry Clark 

v. Department of Correction 
Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffcry Clark 

v. Department of Correction 
Dwight Taylor. Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 

V. Department of Correction 
Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman. Jeffery Clark 

V. Department of Correction 
Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 
Tony R. Broffman v. Department of Correction 
Mary Hargraves v. Department of Correction 
Timothy L. Willis v. Caswell Correctional Center 

Department of Crime Control and Public Safety 

Jerry Lee Fields v. State Highway Patrol 

Gene Wells v. Crime Control & Public Safety, State Highway Patrol 

Jerry Lee Fields v. State Highway Patrol 

Gene Wells v. Crime Control & Public Safety. Slate Highway Patrol 



Chess 
Reilly 

Ncsnow Smith 
Nesnow Smith 
Chess 



08/14/96 
07/24/96 
08/02/96 
08/16/96 
09/17/96 



Reilly 

Gray 

Gray 



Nesnow Smith 



West 
West 



Morrison 



Nesnow Smith 



07/23/96 
05/24/96 
04/25/96 



03/15/96 



03/13/96 
03/07/96 



04/01/96 



04/22/96 



05/17/96 



95 OSP 1046 


Gray 


03/12/96 


95 OSP 1290 


Phipps 


05/14/96 


95 OSP 1441 


Nesnow Smith 


09/19/96 


95 OSP 1460 


Gray 


05/17/96 


96 OSP 0092 


Gray 


06/03/96 


96 OSP 0199 


Morrison 


04/09/96 


96 OSP 0258 


West 


07/02/96 


96 OSP 0261 


Morrison 


08/05/96 


96 OSP 0348 


Phipps 


05/15/96 


96 OSP 0372*' 


Nesnow Smith 


07/05/96 


96 OSP 0373*' 


Nesnow Smith 


07/05/96 


96 OSP 0374*' 


Nesnow Smith 


07/05/96 


96 OSP 0375*' 


Nesnow Smith 


07/05/96 


96 OSP 0376»» 


Nesnow Smith 


07/05/96 


96 OSP 0397 


Gray 


08/15/96 


96 OSP 0625 


Becton 


08/29/96 


96 OSP 0674 


Nesnow Smith 


09/05/96 


96 OSP 0715 


West 


07/30/96 



94 OSP 1174*'" Gray 08/05/96 

95 OSP 0249*' Nesnow Smith 07/23/96 
95 OSP 0836*'" Gray 08/05/96 
95 OSP 1050*' Nesnow Smith 07/23/96 



1081 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Durham County Health Department 

Lylla D Stockton v Durham County Health Department 95 OSP 0176 

East Carolina University 

Bela E. Karvaly. Ph.D. v. ECU Bd. of Trustees, Ch. Richard R. Eakin 96 OSP 0150 

Employment Security Commission 

Gene S. Baker v. Gov. James B. Hunt. Jr.. Ann Q. Duncan, Chairman, 93 OSP 0707 

Employment Security Commission 

William Herbert Allen v. Employment Security Commission 94 OSP 1688 

Patricia Gary v. Employment Security Commission 95 OSP 0793 

Tonderller Lynch v. Emp. Security Comm., Austin Quality Foods, Inc. 96 OSP 0275 

Department of Environment, Health, and Natural Resources 

Roberta Ann "Robin" Hood v. Environment, Health, &. Natural Resources 95 OSP 0035 

Kathy B. Vinson v. Dept. of Environment, Health, &. Natural Resources 95 OSP 0203 

Fayetteville State University 

William C. Neal v. Fayetteville Slate University 95 OSP 0392 

Guilford County Area Mental Health, Developmental Disabilities and Substance Abuse 

Stuart Klatte v. Guilforxi Cty Area MH/DD/SAS. St. Per Comm, OSP 95 OSP 1179 

Department of Human Resources 

Ophelia Webb v. Edard R. Inman. Dir. Alamance Cty DSS. Alamance 96 OSP 0112 

Cty DSS, Alamance County, and DHR 

Gail Marie Rodgers Lincoln v. DHR. DMH/DD/SAS-Cherry Hosp., 96 OSP 0159 

Cherry Hospital 

Johnny Earl Young v. Unit Head Director of Food & Nutrition 96 OSP 0217 

Mary A Boogaerts v. Cherry Hospital, Goldshoro, NC 96 OSP 0269 

Kelvin Paner v Dorothea Dix Hospital 96 OSP 0294 

Johnny Earl Young v Unit Head Director of Food & Nutrition 96 OSP 0543 

Johnny Earl Young v. Unit Head Director of Food & Nutrition 96 OSP 0590 

Kim A. Bell v. Walter B Jones Alcohol & Dnig Abuse Treatment Center 96 OSP 0597 



Buncombe Counrv Department of Social Senices 
Kathy Davis v. Buncombe County Department of Social Services 
Cas^'ell Center 



95 OSP 1487 



Ramona C. Jenkins v. Department of Human Resources. Caswell Center 89 OSP 0411 
Ramona C. Jenkins v. Department of Human Resources, Caswell Center 9] OSP 0522 
Franklin D. Sutton v Department of Human Resources, Caswell Center 94 OSP 0766 

Durham Counr\' Department of Social Services 
Jan E. Smith v Durham County Department of Social Services 95 OSP 1121 

Halifax Counw Department of Social Senices 
Clairbel Thomas v. Halifax County DSS & Director, Halifax County DSS 95 OSP 0905 

Haywood County Department of Social Senices 
Carol Hubbard v. Haywood County Department of Social Services 95 OSP 1084 

Division of Medical Assistance 
Harold Wiggins v. Division of Medical Assistance 95 OSP 1482 



West 



Chess 



ReiUy 
Gray 



Nesnow Smith 



Nesnow Smith 



West 



Bccton 
Becton 
Nesnow Smitlt 



Morrison 



West 



Reilly 



West 



07/02/96 



05/08/96 



Becton 


05/16/96 


11:05 NCR 


300 


West 


06/11/96 






Qiess 


05/14/96 






Chess 


05/21/96 







04/09/96 
09/18/96 



04/22/96 



07/19/96 



Gray 


03/13/96 


Chess 


06/17/96 


Reilly 


08/13/96 


Becton 


05/29/96 


Chess 


08/07/96 


Reilly 


07/09'96 


Reilly 


07/09/96 


Becton 


09/1 1/96 



08/09/96 



03/26/96 
03/26/96 
03/21/96 



05/24/96 



05/29/96 



08/30/96 



06/11/96 



11:13 NCR 1087 



11:10 NCR 865 



11:02 NCR 89 



11:06 NCR 395 



11:13 NCR 1092 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1082 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



O'Berry Center 
Samuel Geddie v. O'Berry Center 

Rockingham County Department of Social Services 
Lorretta Lawson v. Rockingham County DSS 

Wake County Department of Social Services 

Phylis Gilbert v. Wake County Department of Social Services 

Department of Insurance 

Larry W. Creech v. Department of Insurance 

Department of Labor 

Kevin P. Kolbe, Sr v. Department of Labor 

NeMJ Hanover County Board of Health 

Tahandeh Zand v. New Hanover County Board of Health 

Department of Public Instruction 

Johnny Leak v. Public Schools of NC, Dept. of Public Instruction 
McLennard Jay v. Person County Schools 

Sandhill Community College 

Earl Levon Womack v. Sandhill Community College Bd. of Trustees 

Office of the State Controller 

Angela M. Terry v. Office of the State Controller 

North Carolina Stale University 

Vemell Mitchell v. North Carolina Cooperative Extension 

Department of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Dorothy J. Grays v. Div. of Motor Vehicles, Dept. of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Lisa Ann Lee v. Department of Transportation 

Melvin Duncan v. Department of Transportation 

Greg Brown v. Department of Transportation 

Jesse Wayne Castle v. Stale Highway Maint., Guess Rd., Durham, NC 

Archie Brooks v. W. F. Rosser, Department of Transportation 

Jessie L. Allen et al. v. DMV Enforcement Section 

R.L. Singleton v. Department of Transportation 

Stephanie Taylor v. Department of Motor Vehicles 

Tri-County Mental Health Complex 

Deborah Heil v. Tri-County Mental Health Complex 

University of North Carolina 

Pamela B. Edwards v. University of North Carolina at Chapel Hill 
Keith R. Cameron v. University of North Carolina at Chapel Hill 
Jerel H. Bonner v. School of Nursing UNC at Chapel Hill 
Bela E, Kar^-aly. Ph.D. v. UNC Bd. of Gov.. Pres. CD. Spangler, Jr. 



96 OSP 0414 Morrison 



96 OSP 0471 West 



95 OSP 1238 Phipps 



95 OSP 0631 ReiUy 



95 OSP 0968 Morrison 



95 OSP 1035 Nesnow Smith 



96 OSP 0861 Phipps 

96 OSP 0862 Phipps 



96 OSP 0573 Phipps 



96 OSP 0402 Becton 



96 OSP 0132 



Gray 



06/13/96 



06/13/96 



06/27/96 



06/06/96 



03/14/96 



03/01/96 



09/05/96 
09/04/96 



07/25/96 



08/07/96 



05/10/96 



95 OSP 1100 



Nesnow Smith 



03/22/96 



11:07 NCR 434 



11:01 NCR 58 



94 OSP 0589-' 


Gray 


03/01/96 




94 OSP 1044 


Reilly 


04/12/96 


11:03 NCR 173 


95 OSP 0837*' 


Gray 


03/01/96 




95 OSP 1099 


Reilly 


07/31/96 




95 OSP 1462 


Morrison 


03/08/96 




96 OSP 0048 


Reilly 


05/02/96 




96 OSP 00S7 


Gray 


04/15/96 




96 OSP 0239 


Nesnow Smith 


05/17/96 




96 OSP 0408 


Becton 


08/12/96 




96 OSP 0683 


Becton 


08/12/96 




96 OSP 0955 


Becton 


08/29/96 


11:13 NCR 1095 



95 OSP 0842 


Chess 


06/28/96 






95 OSP 1060 


Morrison 


06/24/96 






96 OSP 0026 


Gray 


03/12/96 


11:01 NCR 


61 


96 OSP 0151 


Chess 


05/08/96 







-^ Consolidated oases. 



1083 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AL.I 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Carl E. Whigham v UNC Hospitals at Chapel Hill 
J. Scott Spears v. Ralph Pederson and UNC-C 

Wake County Board of Health 

Debbie L. Whitley v. Env. Health Div. Wake Cty. Dept of Health 

STATE TREASURER 

Donald B. Durham v. Teachers* &L St. Employees Retirement Sys. 

UNIVERSITY OF NORTH CAROLINA 

Sylvia Jeffries v. University of NC Hospitals at Chapel Hill 

James E. Boudwin v. University of NC Hospitals at Chape! Hill 

Rufus T. Moore Jr. v. UNC Hospital 

Marcia Spruill v. UNC Hospitals - Patient Accounts 

Charles E. Houlk v. UNC Hospitals 



96 DSP 0248 
96 DSP 0548 



96 OSP 1090 



92 DST 1066 



Chess 
Chess 



Nesnow Smith 



Chess 



96 UNC 0067 Gray 

96 UNC 0343 Chess 

96 UNC 0470 Reilly 

96 UNC 0500 Becton 

96 UNC 0588 Morrison 



06/11/96 
08/30/96 



09/05/96 



07/17/96 



04/16/96 
07/22/96 
08/12/96 
07/10/96 
08/09/96 



1I:0« NCR 810 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1084 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF FORS\TB 



IN THE OFFICE OF 

ADMINISTRATrVE HEARINGS 

96 ABC 0447 



N.C. ALCOHOLIC BEVERAGE CONTROL 
CONEVnSSION. 

Petitioner, 



BEROTH OIL COMPANY 
T/A FOUR BROTHERS. FOOD STORE #208 
4975 RE^TSOLDA ROAD 
WTNSTON-SALEM, NC 27106 
Respondent. 



RECOMMENDED DECISION 



The above-entitled matter was heard before Fred G. Morrison, Jr., Administrative Law Judge, Office of 
Administrative Hearings, on July 25, 1996, in High Point, North Carolina. 

This hearing was initiated at the request of the Petitioner to determine whether the Respondent has violated the 
Alcoholic Beverage Control laws. In addition to filing a petition pursuant to G.S. 150B-23, the Petitioner served upon the 
Respondent a Notice of Alleged Violation alleging that the Respondent or its agents had violated the Alcoholic Beverage 
Control laws by employee selling malt beverages to Amy Michelle Casper, a person less than 21 years of age, on the 
licensed premises on or about September 7, 1995 at 8:05 p.m., in violation of G.S. I8B-302(a)(l). 

Present at the hearing for the Petitioner was Melissa Owens, Assistant Counsel, ABC Commission, and Glenn 
Lassiter for the North Carolina Alcoholic Beverage Control Commission. 

The Respondent, Beroth Oil Company, was represented by its counsel, T. Paul Hendrick, Hendrick Law Firm, 723 
Coliseum Drive. Suite 101, Winston-Salem, North Carolina 27106-5326. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses and other competent and admissible evidence 
and stipulations, it is found as a fact that; 

1. Respondent. Beroth Oil Company, Inc., T/A Four Brother's Food Store #208, Winston-Salem, North Carolina, held 
valid ABC permits on September 7, 1995, for off premises malt beverages, fortified and unfortified wine, with one 
prior ABC violation. 

2. On September 7. 1995, at approximately 8:05 p.m.. Amy Michelle Casper was working for and under the direct 
supervision of a Forsyth County municipal ABC agent. Casper entered Respondent's Store #208 located in Winston- 
Salem, N.C, went to the cooler area and picked up one 22 ounce bottle of Budweiser beer. Casper went to the 
cashier and paid $1. 16 for the beer. She was not asked for identification. 

3. On September 7, 1995. Amy Michelle Casper was 18 years old. She was bom April 29, 1977. 

4. Notice of Alleged Violation was sent on November 3. 1995, advising Respondent to contact Melissa C. Owens if 
Respondent wanted to negotiate a settlement in compromise. 

5. Ms. Owens and counsel for Respondent negotiated a settlement for Store #208 on November 22, 1995, which 
stipulated a suspended fifteen (15) day suspension upon payment of a three hundred fifty dollar ($350.00) fine before 
Januarv 2, 1996. 



6. 



Respondent sent to the Commission the executed Offers in Compromise for Respondent's store's #208. and #205 



1085 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



CONTESTED CASE DECISIONS 



and a check for Seven Hundred Dollars ($700.00) in payment of fines agreed to by Respondent and Ms. Owens. 
Exhibit A. Respondent's check was negotiated by the Commission on November 29, 1995. Exhibit B. 

7. Respondent was later advised by the Commission by a letter dated December 15, 1995, that the Commission's 
consideration of all Offers in Compromise resulting in suspensions and/or fines was postponed until further notice. 

8. Respondent's Offer in Compromise for Store #208 was specifically rejected by the Commission on February 15, 
1996. 

9. The Commission returned Respondent's funds in the amount of Seven Hundred Dollars ($700.00) on June 24, 1996. 
Exhibit C. Respondent returned the State's check to the Commission. 

10. The Commission and Respondent acted in good faith on all matters related to the Notice of Violation and Offer in 

Compromise for Store #208. 

CONCLUSION OF LAW 

L The North Carolina Alcoholic Beverage Control Commission has the authority to revoke or suspend the permits of 

a permittee for violations of Chapter 18B of the General Statutes, or any rule of the Commission 

2. The Respondent's employee sold malt beverages to Amy Michelle Casper, a person less than 21 years of age. on 
the licensed premises, on September 7, 1995 at 8:05 p.m., in violation of G.S. 18B-302(a)( 1 ). 

3. The facts of this case support the imposition of the Three Hundred Fifty Dollar ($350.00) fine agreed to by the 
parties in November, 1995, as shown by the Offer in Compromise attached as Exhibit D 

RECOMMENDED DECISION 

It is recommended that Respondent's pay three hundred fifty dollars ($350.00) penalty in lieu of a fifteen (15) 
suspension of Respondent's Malt Beverage, Fortified Wine and Unfortified Wine permits for Store #208. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. 
Drawer 27447. Raleigh, N C 27611-7447, in accordance with North Carolina General Statute 150B-36(l3), 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file 
exceptions to this recommended decision and to present written arguments to those in the agency who will make the final 
decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy 
to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Alcoholic Beverage Control 
Commission. 

This the 30th day of August, 1996. 



Fred G. Morrison, Jr. 
Administrative Law Judge 



11:13 NORTH CAROLINA REGISTER October I, 1996 1086 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CARTERET 



IN THE OFnCE OF 
ADMESnSTRATTVE HEARINGS 

95 OSP 0203 



KATHY B. \TNSON, 
Petitioner, 



NORTH CAROLINA DEPARTMENT OF 
ENYTRONMENT, HEALTH, ANT) NATURAL 
RESOURCES, 

Respondent. 



RECOMMENDED DECISION 



The above entitled matter was heard before Beecher R. Gray, administrative law judge, on May 7-8. 1996 in New 
Bern, North Carolina. The parties filed proposed decisions on August 6, 1996. 

APPEARANCES 



Petitioner: Marvin Schiller, Esq. 

Respondent: Edwin L. Gavin 

Assistant Attorney General 

ISSUE 

Whether Respondent discriminated against Petitioner on the basis of her gender uhen it denied her application for 
promotion to a Field Representative III position in its Morehead City District Office. 

FINDINGS OF FACT 

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each 
stipulated on the record that notice was proper in all respects. 

2. Petitioner Kathy B. Vinson is a resident of Emerald Isle. North Carolina. She has been employed 
continuously by the State of North Carolina for 19 years. 15 of which have been with Respondent and the last 6 of which 
have been with Respondent's Division of Coastal Management. Petitioner is currently at salary grade 71, earning 
approximately $41,000 per year. Petitioner is a female. 



3. Petitioner began her work with the Division of Coastal Management (Division) in February, 1988 as a Field 
Representative II. She has remained in that classification 

since her employment with the Division. 

4. Petitioner has an excellent work performance record while working for the Division. Since November, 
1989, Petitioner's work performance ratings predominately have been at the highest level attainable. Never has she been 
rated below very good/exceeds expectations. She was rated in the highest category attainable m her last performance rating 
prior to the events giving rise to this contested case. 

5. The Division's Field Representative 11 and HI positions have generic job descriptions. Both classifications 
are capable of carrying out both planning and regulatory functions. The Division historically has designated a particular 
position as either regulator}' or planning. Petitioner was hired into a position designated as a planning position. 

6. The Field Representative positions designated as regulatory carry out functions such as permitting, 
inspections, and enforcement. TTie Field Representative positions designated as planning carry out functions such as beach 
access, review of Coastal Area Management Act (CAMA) pjermit applications for consistency with local land use plans, and 
coordination of land use plans. The Division prefers that its Field Representatives in regulators' positions have scientific 
educational backgrounds. 



10S7 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



CONTESTED CASE DECISIONS 



7. In April, 1994, the Division posted a position vacancy for a Field Representative III in its Morehead City 
office. The person who vacated this position was performing regulatory duties. The Division made a conscious decision 
to continue its designation of this position as regulatory. The vacancy notice contained a stated preference for candidates 
with regulatory experience. 

8. Petitioner applied for the Field Representative HI position in the Morehead City Office. Among the other 
candidates for this pxDsition was Ted Tyndall, a male Field Representative I working in the Division's Washington Office in 
a position designated as regulatory. 

9. Both Petitioner and Ted Tyndall met the job qualifications for the vacant Field Representative III position. 

10. Petitioner holds a Bachelor of Arts Degree In early childhood education and a Masters of Education Degree 
in vocational rehabilitation counseling. Petitioner has some experience in regulatory projects while working for the Division, 
but has not worked in a position designated as regulatory. 

1 1. Ted Tyndall holds Bachelor of Science and Masters Degrees in Biology. As a Field Representative I with 
the Division in its Washington office, Ted Tyndall worked for two years in permitting, a regulatory function. Prior to his 
employment as a Field Representative I, he worked for nine years in field biology while a university researcher, a senior 
scientist and project manager with an environmental consulting firm, or as an environmental technician with Carolina Power 
and Light Company. 

12. Charles Jones, the Division's District Manager for the Morehead City office and Preston Pale, Assistant 
Division Director for Permitting and Enforcement, conducted structured interviews of eight (8) applicants for the vacant Field 
Representative HI position. Following those interviews. District Manager Jones recommended to Division Director Roger 
Schecter that Ted Tyndall be promoted to the vacant position because of his scientific education and experience in biology 
and his experience in the Division's 

regulatory functions. 

13. Prior to the position being filled. Petitioner and District Manager Jones discussed converting the vacant 
Field Representative III position from regulator}' to planning. Petitioner requested that the position be converted to a 
planning position or that she be allowed to train into the regulatory position since she was generically qualified for the 
fXDsition. On February 21. 1994, District Manager Charles Jones wrote to Division Director Roger Schecter indicating that 
he had accomplished an internal review and evaluation of whether to leave the vacant Field Representative III position in 
regulatory or to consider changing it to planning. He recommended that it remain a regulatory position. 

14. Division Director Roger Schecter followed District Manager Jones's recommendation and did not convert 
the primary duties of the vacant position from regulatory to planning. At the time of this position vacancy, the Division had 
one Field Representative III planner working in its Washington, North Carolma office. Division Director Schecter presented 
evidence during his testimony in this contested case hearing that he had a long range plan for the Division to have two 
planners in Field Representative III positions. He communicated this plan to Petitioner in a memo dated September 26, 1994 
in which he proposed to reclassify Petitioner from a Field Representative II to a Field Representative III, both in planning. 

15. In addition to the Field Representative III planning position in its Washington office, the Division at one 
time had another Field Repnssentative III planning position occupied by Haskell Rhett, a male. Haskell Rhett vacated that 
{wsition sometime prior to April, 1993. In April. 1993, Petitioner wrote to Division Director Schecter, raising the issues 
of inequity in pay grades for planners in the Division and lack of promotional opportunities for planners. 

16. TTie Division has the ability and discretion to switch the duties of a Field Representative III position from 
planning to regulatory or from regulatory to planning. When Haskell Rhett vacated his Field Representative III planning 
position prior to April, 1993, the Division changed that position's designation from planning to regulatory. 

17. From 1988 through the date of the award of this promotion to Ted Tyndall in 1994, none of the planners 
on the Division staff, all of whom are classified as Field Representatives I, II, or III. were given promotional opportunities. 
Among those Field Representatives whose positions are designated regulatory, the current most senior representative who 
applied has received the first available promotion to a higher level Field Representative position from 1988 through the date 
of this contested case hearing. 



11:13 NORTH CAROLINA REGISTER October 1, 1996 1088 



CONTESTED CASE DECISIONS 



18. At the time this Field Representative III position was awarded to Ted Tyndall, Petitioner was the most 
senior Field Representative who applied and was qualified for the position. 

19. District Manager Jones testified during the hearing of this contested case, that the Division could have 
redesignated the vacant Field Representative III position to planning, promoted Petitioner into that position, and then hired 
Ted Tyndall into Petitioner's vacant Field Representative 11 position, redesignating it as regulatory. Both Petitioner and Ted 
Tyndall then would have received two (2) pay grade promotions. District Manager Jones and Division Director Schecter 
were aware that Manager Jones's recommendation, followed by Director Schecter's decision, to keep the vacant Field 
Representative III position's regulatory designation essentially eliminated Petitioner from the promotion because of her lack 
of scientific education and regulatory experience. 

20. After Petitioner began with the Division in February, 1988 as a Field Representative II, she was assigned 
an office to be shared with a male. Jim Mercer, a Field Representative HI with regulatory responsibilities. In 1988, she went 
to her supervisor. District Manager Charles Jones, on various occasions to complain about Jim Mercer's treatment of her 
in the shared office. She complained that Jim Mercer was condescending toward her, treating her as his underling and 
referring to her as the girl. She complained that Jim Mercer generally made her work environment unpleasant by talking 
down about women, in addition to his direct actions toward her. 

21. Jim Mercer did not testify during this contested case hearing. Petitioner's testimony is the only evidence 
of the hostile work atmosphere and treatment she received from her office-mate Field Representative III Jim Mercer. Her 
testimony that she complained to her supervisor. District Manager Charles Jones, and to Assistant Division Director Preston 
Pate is corroborated by their testimonies in this hearing. Having observed Petitioner's demeanor, and having considered 
the totality of the evidence in this contested case, I find her testimony on this issue credible. 

22. Both District Manager Jones and Assistant Division Director Pate were aware of the treatment of Petitioner 
by Jim Mercer but took no action to correct it from 1988 until 1993. District Manager Jones and Assistant Division Director 
Pate joked that a chalk line between Jim Mercer and Petitioner would have to be drawn on the floor of the shared office to 
resolve the problem. 

23. Petitioner's request for reUef from this situation finally was granted when District Manager Jones moved 
Petitioner out of the shared office in 1993. He testified during this contested case hearing that his reason for making the 
move was because the relationship between Jim Mercer and Petitioner in the shared office had become explosive. 

24. Several facts shed light on the attitudes of the supervisory personnel in Petitioner's office and the general 
atmosphere in the office: 

1. Assistant Division Director Preston Pate announced a going away party for David Noble, who was 
vacating the position Petitioner applied for, and made the statement that no assholes and no women 
were invited. 

2. Assistant Division Director Pate made the statement, upon discovering the salary of a female 
planner who was working in Tyrrell County, that " this little girl is making more money than I 
am". 

3. At a staff meeting in Raleigh, Assistant Division Director Pate asked two female employees to 
make coffee when they came into the room; he then asked, "what's wrong with the damn women 
around here?". 

4. Some of the office staff attend a cheers party on Wednesday nights at the home of Charles Pigott, 
a Field Representative 1. No women employees are invited. District Manager Charles Jones has 
taken action designed to have Charles Pigott's Field Representative I position upgraded to a Field 
Representative II. 

5. At the time Petitioner filed the present grievance. District Manager Jones had not taken the same 
action toward getting Petitioner's position upgraded, even though she has requested that it be 
considered. 



1089 NORTH CAROLINA REGISTER October 1, 1996 11:13 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

Based upon the foregoing Findings of Fact, I make the following conclusions of law. 

1. The parties properly are before the Office of Administrative Hearings. 

2. Petitioner has alleged sex discrimination in Respondent's failure to promote her to a Field Representative 
in position and therefore bears the burden of proof, by the greater weight of the evidence, that she was not selected for the 
[xisition because of her sex. North Carolina Department of Correction v. Gibson , 308 N.C. 131, 301 S.E. 2d 78 (1983). 
While the burden of production may shift during the analysis of this case, the ultimate burden of persuasion remains with 
Petitioner. SL Mary's Honor Center y. Hicks , U.S. 113 S. Ct. 2742 (1993). 

3. The framework for analysis of the evidence produced in this hearing has been established by our courts. 
The following standards are applicable here: 

1. The claimant carries the initial burden of establishing a prima facie case of discrimitiation. 

2. The burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the 
applicant's rejection. 

3. If a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the 
opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination, 
(citations omitted). Gibson , 308 N.C. at 137. 301 S.E. 2d at 82. 

4. Petitioner's status as a female person places her in a protected class for purposes of gender discrimination. 
She applied and was qualified for a vacant Field Representative HI position. She was not selected for the position. A male 
person was selected for the position. Petitioner thus has established a prima facie case of gender discrimination. 

5. Respondent has produced evidence that it hired the male candidate over Petitioner because he has 
undergraduate and graduate degrees in biology and approximately eleven years of biological field experience, two with the 
agency in a regulatory capacity as a Field Representative I and nine outside of this agency. Respondent thus has articulated 
a legitimate nondiscriminatory reason for its decision to promote the male candidate over Petitioner and thereby has produced 
evidence sufficient to rebut the presumption arising from the prima facie case of gender discrimination established by 
Petitioner. 

6. The totality of the evidence in this contested case demonstrates that Respondent's legitimate 
nondiscriminatory reasons for promoting a male candidate and rejecting Petitioner's application are pretext for discrimination 
against her because of her gender. 

RECOMMENDED DECISION 

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner receive 
back pay and all benefits which she would have received had she been promoted to the position of Field Representative HI, 
formerly held by David Noble, in July, 1994. It is recommended that she receive front pay until such time that she is 
promoted or reclassified to a Field Representative III position, and that she receive attorney's fees in a reasonable amount 
to be determined by the State Personnel Commission upon submission of appropriate affidavits. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. 
Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file 
exceptions to this recommended decision and to present written arguments to those in the agency who will make the final 
decision. G.S. 150B-36(a). 



11:13 NORTH CAROLINA REGISTER October 1, 1996 1090 



CONTESTED CASE DECISIONS 



The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy 
to the parties" attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the State Personnel Commission. 

This the 18th day of September, 1996. 



Beecher R. Gray 
Administrative Law Judge 



1091 NORTH CAROLINA REGISTER October 1, 1996 11:13 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF HAYWOOD 



IN THE OFFICE OF 

ADMESflSTRATTVE HEARINGS 

95 OSP 1084 



CAROL HUBBARD, 

Petitioner, 



HAYWOOD COUNTY DEPARTMENT OF SOCIAL 
SERVICES, 

Respondent. 



RECOMMENDED DECISION 



This matter came on for hearing before the undersigned administrative law judge on April 16, 1996, in Waynesville. 

Mr. -Randal Seago represented the petitioner. Mr. Kirk Randleman represented the respondent. The petitioner 
testified and introduced three exhibits. The respondent presented five witnesses and introduced six exhibits. Proposed 
Findings of Fact were filed by the petitioner on August 26, 1996. 

ISSUES 

1. Was the petitioner dismissed for just cause? 

2. Was the petitioner's dismissal the result of discrimination based upon her handicapping condition? 

FINDINGS OF FACT 

1. Carol Hubbard was employed by the Haywood County Department of Social Services in the years 1994 and 1995 
as a clinical social worker. Petitioner was at the time of her employment a citizen and resident of Haywood County, 
North Carolina, and was at the time of the hearing a citizen and resident of Buncombe County, North Carolina. 

2. As a clinical social worker the petitioner had a duty to provide treatment for families who were clients of the 
respondent and to maintain such records of her performance of duties and other matters as were required by the 
agency and by state law. 

3. Beginning January, 1995, the respondent, by and through its supervisors and managers, directed the petitioner to 
complete documentation necessary to accomplish closure of certain cases within the Haywood County Department 
of Social Services. 

4. On February 8, 1995, the petitioner advised the respondent that she was the subject of certain disabling conditions 
and that she required reasonable accommodations. In particular, the respondent advised that she was disabled by 
encephalitis, that she had suffered from encephalitis in the past, and that encephalitis resulted in psychomotor 
dysfunc tion. At that time she provided to the director of the Haywood County Social Services Department records 
of the Vocational Rehabilitation agency concerning the period of her- employment with the respondent. TTie 
psychomotor dysfunction disability that the petitioner referred to in her request for accommodations was referred 
to in the Vocational Rehabilitation records. In particular, her weakness in the ability to convert information to 
written words was noted. 

5. On March 10, 1995, the respondent took a first step disciplinary action and asserted unacceptable job performance. 
The respondent indicated to the petitioner that she had failed to close cases as directed in memos from her 
supervisor. 

6. On May 3, 1995. the petitioner received a second step disciplinary action related to her job performance. The 
second step disciplinary action was delivered to the petitioner in the form required by the respondent's policies. 

7. On May 15, 1995, the respondent received a letter from the petitioner's treating psychologist, Dr. Mary Wheeler. 
Dr. Wheeler diagnosed the petitioner as having a major depressive episode. 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



1092 



CONTESTED CASE DECISIONS 



8. On May 23, 1995, the petitioner received a third step disciplinar>' action. The third step disciplinary action was 
taken according to the policies of the respondent. 

9. On June 12, 1995, the Director of the Haywood County DSS received a letter from the petitioner's treating 
psychologist. Dr. Mary Vrlieeler. The letter established two things: first, that she was subject to a disabling 
condition; secondly, that with reasonable accommodations she could continue to perform the essential functions of 
her job. The psychologist wrote and it is found as a fact that: 

You have requested that evaluate Carol's disabilities and the effects they have on her ability to perform the essential 
functions of her position. Since am not a VR counselor, will direct my comments mainly to the disability caused by the 
Axis diagnoses listed above. Nevertheless, would also mention that Carol has worked in the social work field for many 
years without specific accommodations for the disability caused by psychomotor dysfunction secondary to post-encephalitis, 
it appears that this disabilit>' became a noticeable problem when Carol had to quickly remedy a backlog in paper work that 
everyone in her department was experiencing. Apparently, she had asked for accommodations in January, 1993, when she 
started getting behind. When a computer was denied, she continued to fall further behind and has not been able to catch 
up as quickly as others. In the past few months, she has reported to ..me feeling singled out and Observed more than others, 
and this has contributed to her anxiety and depression. As she became more anxious about her performance, she has been 
less able to function and more aware of her job being threatened as a result, and then felt more anxious. 

In regard to potential limitations in her work, Carol's psychological symptoms would certainly exacerbate her primary 
disabUitV' of psychomotor retardation and decrease her ability to function in relations to those tasks which require .attention, 
concentration, energy and self-confidence. 

You have asked what type of reasonable accommodations are needed at this time, would hope that there could be some 
turnaround in the vicious cycle that has developed . This would not be a time to expect her to easily or quickly learn a new 
skill that requires intense concentration and coordination, such as using a-computer for her paperwork. However, it appears 
that is what would be most helpful at this time. Your understanding that taking time to learn computer skills would probably 
result ii- a short-term loss of efficiency would probably be helpful to her . believe that as her medication becomes adjusted 
she will ha\e more abilitv' to concentrate and more energy to apply to this task. 

10. On July 6, 1995. the employer terminated the petitioner's employment. 

CONCLUSIONS OF LAW 

1. TTie petitioner was a permanent employee of theHaywood County Department of Social Services and therefore 
subject to the protection of the State Personnel Act. GS Chapter 126. 

2. The Petitioner is a "handicapped person" as defined in G.S. 168A-3(4) and a "qualified handicapped person" under 
G.S. 168A-3(9). 

3. The respondent failed to provide reasonable accommodations to the petitioner by failing to make accommodations 
which would have enabled her to perform the job of Clinical Social Worker. Reasonable accommodations would 
include providing a period of time to learn computer skills and to adjust to her medication in order to allow the 
petitioner a period of time to become proficient at the computer. 

4. The petitioner's dismissal was the result of discrimination based on a handicapping condition. 

5. The petitioner v. as dismissed without just cause. 

RECOMMENDED DECISION 

It is recommended that the petitioner be reinstated with back pay and attorney fees. It is also recommended the 
respondent provide reasonable accommodation to the petitioner. 



1093 NORTH CAROLINA REGISTER October i„ 1996 11:13 



CONTESTED CASE DECISIONS 



NOTICE 

The final decision in this contested case will be made by the State Personnel Commission. The parties have the right 
to file exceptions to this recommended decision and to present written arguments to this agency. The agency will mail a 
copy of the final decision to the parties, the attorneys of record and the Office of Administrative Hearings. 

This the 3rd day of August, 1996. 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judge 



11:13 NORTH CAROLINA REGISTER October 1, 1996 1094 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLEVA 



COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATrVE HEARINGS 

96 OSP 0955 



STEPHANIE TAYLOR, 

Petitioner, 



N.C. DEPARTIVIENT OF MOTOR VEHICLES, 
Respondent. 



RECOMMENDED DECISION 



This matter was heard before the undersigned administrative law judge in Raleigh, North Carolina on June 12 and 
13, 1996. 



For Petitioner: 
For Respondent: 



APPEARANCES 

Ormand Harriott, Attorney at Law, Raleigh, North Carolina. 

C. Norman Young, Associate Attorney General, N.C. Department of Justice, Raleigh, North 
Carolina. 



ISSUES 

1. Whether the Respondent had just cause to dismiss the Petitioner. 

2. Whether the Petitioner is handicapped as defined in N.C. Gen. Stat. §168A-3 and whether the Respondent 
discriminated against the Petitioner on the basis of her handicap. 

3. Whether the Petitioner was properly separated from State employment as a result of unavailability for work. 

STATUTES AND RULES INVOLVED 

N.C. Gen. Stat. §126-4(7a) 

N.C. Gen. Stat. §126-35 

N.C. Gen. Stat. §168A-3 

25 NCAC ID .0519 

25 NCAC IE .1400 

25 NCAC IJ .0604 

EXHIBITS 

The following exhibits offered by the Petitioner were received in evidence: 

1, 2, 3, 4, 6, 20, 21, 23, 24, 25. 26, 30, 32, 33, 34, 38, 39, 43, 44. 47, 48, 52, 53, 55, 56, 57, 58, 61, 70. 71, 73, 
75, 76, 82, 83, 97, 98, 101. 102. 110, 111, 112, 114, 118, 119, 124, 127, 129, 131, 132, and 133. 

The following exhibits offered by the Respondent were received in evidence: 

1, 4, 5. 6, 7. 8. 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21. 

Based upon the official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, the undersigned makes the following: 

FINDINGS OF FACT 

1 . The Petitioner was employed by the Respondent as a data entry operator for a period of approximately four years 



1095 



NORTH CAROLINA REGISTER 



October 1, 1996 



11:13 



CONTESTED CASE DECISIONS 



from August 15, 1990, until November, 1994. 

2. The Petitioner's employment records indicate that she is an excellent data entry operator. 

3. On August 6, 1992, the Petitioner received the first of several warnings regarding her absences from work. The 
Petitioner's absences were exceeding the number of days of leave available to her. 

4. IXiring 1993, the Petitioner's absenteeism resulted in her pay being docked (leave without pay) for the months of 
April, May, June, August September, October, and December. She received an Oral Warning in June, 1993 
regarding her absenteeism. A Written Warning prepared in December, 1993 was not given to the Petitioner after 
she met with the Respondent's Commissioner, Alexander Killens. 

5. In January, 1995, the Respondent requested that the Petitioner have her physician provide a medical statement 
regarding the nature and duration of her illness. TTie Petitioner was also asked to sign a medical release form so 
that the Respondent could have medical information from the Petitioner's doctor released to it. 

6. The Petitioner refiised to sign a medical release form because she did not want aU of her medical records released 
to the Respondent and no one specified or explained to her exactly which documents the Respondent wanted. The 
medical excuses the Petitioner presented to the Respondent did, however, contain a permission to release medical 
information statement that the Petitioner signed on several different occasions. 

7. During the latter part of June, 1994, the Petitioner was diagnosed as suffering from episodic urticaria/angioedema, 
possibly related to a food allergy. 

8. On July 1, 1994, the Petitioner filed a Complaint and Motion for Domestic Violence Protective Order against her 
husband, Anthony Taylor. A hearing was scheduled for July 11, 1994. 

9. On July 5, 1994, the Petitioner had an allergic reaction which caused her face, throat, and tongue to swell She 
was placed on a trial dosage of hydroxyzine. 

10. On July 6, 1994, the Petitioner's supervisor, Eula M. Williams, counseled the Petitioner about "docking of time, 
coming to work late and absenteeism." The written documentation of the counseling session noted that the 
Petitioner had been docked during the months of February, March, April. May, and June of 1994. 

1 1 . Tlie Petitioner told Ms. Williams that her absences were due to illness. The Petitioner was left with the impression 
that Ms. Williams did not believe the Petitioner was really ill. 

12. Ms. Williams testified that she did not believe that the Petitioner was always as sick as she portrayed. Ms. Williams 
felt that there were occasions when the Petitioner could have come in to work and utilized the sick room at work 
when she was not feeling well. 

13. In July, 1994, a dispute regarding the Petitioner's time sheet arose. As a result of this dispute, the Petitioner was 
no longer allowed to work overtime to make up hours she had missed from work. 

14. The Respondent referred the Petitioner to the Employees' Assistance Program. Through that program, the 
Petitioner was referred to a Psychiatrist and began undergoing counseling and treatment for depression. 

15. During the time period bervveen July 7, 1994 and July 18, 1994, the Petitioner was absent for the following periods: 

July 7 
July 8 
July 11 
July 12 
July 13 
July 15 
July 18 



11:13 NORTH CAROLINA REGISTER October 1, 1996 1096 



Dentist 


0.6 hours 


Sick-arrived late 


4.5 


Went to Court 


3.0 


Sick 


8.0 


Sick 


8.0 


Sick 


8.0 


Sick 


8.0 




40.1 



CONTESTED CASE DECISIONS 



16. On July 22. 1994, Ms. Williams issued the Petitioner a Written Warning in which it was asserted that the 
Petitioner's "attendance record is inexcusable and cannot be allowed to continue in this manner under any 
circumstances." The Petitioner was advised that an immediate correction of her attendance pattern was necessary 
if she wanted to continue her employment with the Respondent. 

17. During the period from August 1. 1994 through September 2, 1994, the Petitioner missed the following time from 
work; 



8' I. 4 & 5 


Sick 


24.0 hours 


8/15, 16, 17. 18 & 19 


Sick 


40.0 


8/25 


Sick 


8.0 


8/29.30 &31 


Sick 


24.0 


9/1 &2 


Sick 


16.0 
112.0 



18. On September 7, 1994, Ms. Williams issued the Petitioner a Second Written Warning regarding her absenteeism 
and the docking of the Petitioner's time. TTie Petitioner was informed that her "attendance record is not acceptable 
and is inexcusable." The Petitioner was further told that "an}' future docking uill not be tolerated." 

19. In response to the Second Written Warning, the Petitioner again explained that she was ill. She also Informed the 
Respondent that she does not know from day to day when she will be affected by her urticaria. 

20. The Petitioner was asked if she would consent to ha\Lng her doctor provide statements regarding her illness, 
explaining whether her condition "is long term or short term, whether it renders her unable to perform her duties 
as a Data Entr\- Operator, whether her medication produces the same effect. " The Petitioner refused to consent 
to the Respondent contacting her physician but continued to present medical excuses from her doctor regarding some 
of her absences from work. 

21. On October 14, 1994, the Petitioner received a Final Written Wammg regarding her absenteeism and the docking 
of her time The Petitioner was informed that "failure to Initiate any necessary remedial action to improve your 
work attendance to an acceptable and continuous level will result in termination of }our employment. ..." 

22. The Petitioner was absent from v.ork 67.3 hours dunng the penod from October 14, 1994 through October 18, 
1994. 

23. The Petitioner did not report to work during the period from October 28. 1994 through November 16. 1994. 

24. Ms. WUliams called the Petitioner on No\ember 14, 1994 and told her that she needed to come m for a Predisrmssal 
Conference. The Petitioner asked Ms. Williams what a Predismissal Conference was and v.anted to know when 
had they dismissed her. Ms Williams told the Petitioner that they would discuss that when she came in. The 
Petitioner told Ms. Williams that she had a doctor s appointment on November 15, 1994. 

25. Ms. Williams did not give the Petitioner a specific time or date for the conference. 

26. The Respondent did not notih' the Petitioner in v.riting of her proposed termination prior to scheduling a 
predismissal conference. 

27. The Petitioner did not repxjrt to work on November 15, 1994. She called In after she went to her appointment v.ith 
her doctor and informed the Respondent that she was having medical problems. 

28. The Petitioner spoke with Addie M. Averv', the .Assistant Director of Dri\er License Section on No\ember 15, 
1994, and asked her what a Predismissal Conference was. 

29. On November 16, 1994, the Respondent sent the Petitioner a letter informing her that "[d]ue to unexcused absences 
from work since July 6, 1994, [her] employment with the Division of Motor Vehicles. Dri\er License Section, is 
terminated effecti\e at the close of workday, November 16, 1994." 

Based on the fore2oin2 Findings of Fact, the undersigned Administrati\e Law Judge makes the follow ing: 



1097 NORTH CAROLINA REGISTER October I, 1996 11:13 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapters 
126 and 150B of the North Carolina General Statutes and has the authority to issue a recommended decision to the 
State Personnel Commission which shall make the final decision. 

2. North Carolina General Statutes §126-35 states that "[n]o career State employee subject to the State Personnel Act 
shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause." "Just cause" dismissals 
are defined in the North Carolina Administrative Code in Title 25, r. 1J.0604. That section states: 

There are two bases for the discipline or dismissal of employees under the statutory standard of "just 
cause" as set out in G.S. 126-35. These two are: 

(1) Discipline or dismissal imposed on the basis of unacceptable job performance; 

(2) Discipline or dismissal imposed on the basis of unacceptable personal conduct. 

3. Unacceptable personal conduct is defined in relevant part as "the willful violation of known or written work rules." 
25 NCAC IJ .0604(d)(4) (Effective March 1, 1994). Unacceptable job performance is defined as "the failure to 
satisfactorily perform job requirements as specified in the job description, work plan, or as directed by 
management." 25 NCAC IJ .0604(c) (Effective March 1, 1994). In a dismissal based upon unsatisfactory job 
performance, the employee must receive a minimum number of warnings prior to dismissal. (State Personnel 
Manual, Sec. 8). 

4. Chronic absenteeism from the workplace can result in disruption of the work flow and therefore, is a legitimate 
employer concern. Depending upon the amount of leave available to an employee, chronic absenteeism can result 
in termination from employment based ujxsn either "just cause" or "unavailability for work." When medical issues 
are concerned, the Family and Medical Leave Act ("FMLA") comes into play. There are also situations where the 
absences may be the result of a handicap that the employer must make a reasonable attempt to accommodate under 
the Americans with Disabilities Act ("ADA"). 

5. The Respondent contends that it dismissed the Petitioner due to her unavailability for work A termination based 
upon unavailability for work requires that the employer do the following: a) notify an employee of the proposed 
separation due to unavailability; b) notify the employee of the efforts taken to avoid separation, and why the efforts 
were unsuccessful; c) give the employee an opportunity to propose alternative methods of accommodation; d) 
respond to the employee's alternative proposals regarding accommodation. This procedure was not followed with 
the Petitioner. 

6. Whether the Respondent had just cause to terminate the Petitioner depends upon whether the FMLA and/or ADA 
are applicable to the Petitioner's circumstances. 

7. Since the Petitioner was being docked, she had obviously exhausted all of her available paid leave. The record does 
not indicate how many days the Petitioner missed from work due to medical problems in 1994. If her medical 
absences exceeded the twelve weeks provided for by the FMLA, then her absences could be considered excessive 
and cause for termination based upon just cause when the appropriate warnings had been issued, which was the case 
here. 

8. TTie medical records the Petitioner provided to the Respondent were not sufficient to establish that she has a 
handicapping condition. The additional medical records produced as evidence at the hearing also fail to establish 
that the Petitioner is handicapped, 

9. Even if the Respondent had just cause to dismiss the Petitioner for excessive absenteeism, it did not follow the 
proper procedure. The Petitioner was not given written notice of the reasons for her proposed dismissal. Instead 
she was told she needed to come in for a Predismissal Conference. There were no exigent circumstances that 
required the Respondent to act immediately in regard to its determination that the Petitioner's continued absence 
from work warranted dismissal. 

10. The Petitioner had the burden of showing that she had not exceeded the number of absences allowed by the FMLA 
or that she had a handicapping condition that the Respondent could have reasonably accommodated. The Petitioner 



11:13 NORTH CAROLINA REGISTER October 1, 1996 1098 



CONTESTED CASE DECISIONS 



failed to meet either burden of proof. 

11. Since the Petitioner failed to prove either that her absences were covered by the FMLA or that she had a handicap 
as that term is defined in N.C. Gen. Stat. §168A-3, the Respondent had grounds to dismiss her on the basis of 
either unavailability for work or just cause based upon the Petitioner's absenteeism. 

12. I\irsuant to the State Personnel Commission's rules, procedural violations of the type involved in this case can 
entitle a petitioner to an award of back pay or attorneys" fees, or both for such a period of time as the Commission 
determines is appropriate. 

RECOMMENDED DECISION 

The North Carolina State Personnel Commission ("Commission") will make the Final Decision in this contested 
case. It is recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and uphold 
the Respondent's decision to dismiss the Petitioner, but as a result of the procedural violations, award the Petitioner back 
pay or attorneys' fees, or both for such a period of time as the Commission determines is appropriate. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statutes section 
150B-36(b). 

NOTICE 

Before the State Personnel Commission makes the FINAL DECISION, it is required by North Carolina General 
Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, 
and to present written arguments to those in the agency who will make the final decision. 

The Commission is required by North Carolina General Statutes section 150B-36(T5) to serve a copy of the 
FINAL DECISION on all parties and to furnish a copy to the Parties' attorney of record. 

This the 29th day of August, 1996. 



Brenda B. Becton 
Administrative Law Judge 



1099 NORTH CAROLINA REGISTER October 1, 1996 11:13 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. Tfie other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Envu-onment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Fhiblic Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Ostetipadiic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refngeration Examiners 


60 






Samtanan Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



11:13 



NORTH CAROLINA REGISTER 



October 1, 1996 



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